Adequate Notice of Meetings
Who cares?
Those governing societies and charities are, generally, not too worried about what’s in the organisation’s constitution (and some of those in governance may never have read the Constitution!). However, they should be concerned, as the proceedings of meetings called without adequate notice to members can be declared to be invalid (as occurred in Reeves v Pauanui Sports and Recreational Club Inc, CIV-2010-419-1599, Hamilton, 16 December 2010 (HC), at [45] – see Clear Days – Trouble at the Courts – anyone for tennis? LINK). In reality, most people do not know the meaning of the expressions “clear days” or “at least ‘x’ days” used in the rules dealing with notices of meeting, the lodgement of notices of motion for business at meetings, or the election of officers. If people started considering what the phrases “clear days” or “at least ‘x’ days” mean, they would almost certainly discuss whether it meant that you should ignore non-working days and parts of a day.
What is the problem with “clear days” or “at least ‘x’ days”?
A farmer, agricultural contractor, home gardener or outdoors sportsperson might assume that “clear days” refers to the lack of clouds and therefore the lack of rain, or other precipitation. If they come across the phrase in a constitution, they will sensibly conclude that the expression was being used in an unfamiliar way. Search in MSWord for the phrase “clear days” and you will be referred to the Encarta Dictionary which gives 19 definitions of the adjective “clear” – “free from what dims,” “transparent,” “free from clouds,” “pure in hue,” perfect and unblemished,” distinct,” “sounding pleasant,” out-and-out,” “unambiguous,” “understood precisely,” “evident,” “mentally sharp and discerning,” “without guilt,” unobstructed,” “empty,” “not attached to or touching anything,” “net,” “not financially obligated,” and “unpenalized;” none of which is very helpful or applicable in the present context. The issues are no clearer if the formula of “at least ‘x’ days” is used, as discussed below.
Interpretation Act 1999
Section 35 of the Interpretation Act 1999 provides that:
35 Time
(1) A period of time described as beginning at, on, or with a specified day, act, or event includes that day or the day of the act or event.
(2) A period of time described as beginning from or after a specified day, act, or event does not include that day or the day of the act or event.
(3) A period of time described as ending by, on, at, or with, or as continuing to or until, a specified day, act, or event includes that day or the day of the act or event.
(4) A period of time described as ending before a specified day, act, or event does not include that day or the day of the act or event.
(5) A reference to a number of days between 2 events does not include the days on which the events happened.
(6) A thing that, under an enactment, must or may be done on a particular day or within a limited period of time may, if that day or the last day of that period is not a working day, be done on the next working day.
While the Interpretation Act applies to statutes and statutory regulations, section 35 may influence the way Courts consider prescribed periods of time in other contexts.
“Clear days” – confusion worse confounded
Search on your computer for the phrase “clear days” and Bing will give you four possibly applicable meanings, probably leaving you more confused than ever:
- “(Law.) days reckoned from one day to another, excluding both the first and last day; as, from Sunday to Sunday there are six clear days. See also: Clear.”
- “All the days in a schedule or timeline, except the day of commencement and day of completion.”
- “The legal definition of Clear Days is Full and complete days.”
- “Complete days, not including: The day on which the period begins. If the end of the period is defined by reference to an event (for example, a hearing), the day of …”
The meaning of the phrase “clear days” as defined by Courts
The phrase is most commonly found in constitutions in the context of the period of notice required for the calling of committee or members’ meetings, such as “14 days’ clear notice.” In such instances, 14 clear days’ means 14 days (working and holiday), excluding the day when the notice being given and the day of the meeting (to make it “clear days’ notice”) – see Re Drury Coal Co Ltd (No 2) (1908) 28 NZLR 107 (SC), Re Amalgamated Distributors Ltd [1931] NZLR 648 (SC), Queen City Residential Ltd v Patterson Co-Partners Architects Ltd [1995] 3 NZLR 307 (HC), and Reeves v Pauanui Sports and Recreational Club Inc, CIV-2010-419-1599, Hamilton, 16 December 2010 (HC), noting that the exact wording of the rule may affect the interpretation. Where 14 clear days’ notice is required for a meeting on the 28th of the month, notice must be given on or before the 12th – in other words, you subtract 16 from the date of the meeting to exclude the day of the meeting and the day notice is given. The same principles apply to 7, 10 or 30 clear days. The basis of this meaning of “clear days” is found in the decision in Clayton’s Case (1585) 77 ER 48 where the Court said “the law in this computation doth reject all fractions and divisions of a day for the uncertainty, which is always the mother of confusion and contention.”
The meaning of the phrase “at least ‘x’ days”
The phrase “at least ‘x’ days” is, if anything, potentially more confusing than the phrase “clear days,” and in some circumstances has the same meaning as the phrase “clear days.” In T v J [2000] 2 NZLR 336 the High Court held that where the formula “at least” is used the period must exclude fractions of a day – in essence, therefore, “at least ‘x’ days” means the same as “‘x’ clear days.” Thus, “at least 14 clear days” notice of a meeting means 14 days (working and holiday), excluding the day when the notice being given and the day of the meeting. However, the context may require a different approach; as in Body Corporate 166208 v Temple 88 Ltd [2016] NZHC 848 (High Court) where a notice sent on Wednesday 26 November 2014 before the meeting day on Wednesday 3 December 2014 was held to comply with a rule requiring notice to be given “at least 1 week before” the date of a meeting.
Are the phrases “clear days” or “at least ‘x’ days” a form of unnecessary legalese?
The days of lawyers filling documents they draft with archaic words and expressions are well-past. However, those keen on “plain English” drafting sometimes find it hard to find ready substitutes for words and phrases that have acquired time-honoured meanings in law. For instance, how best might one re-phrase a rule saying “At least 14 clear days [or “At least ‘x’ days”] before any general meeting the secretary shall post or email to all members written notice of the business to be conducted at the general meeting”? It would be difficult to do so while retaining the meaning of the “clear days” or “‘x’ days” phrases, although it is not clear what the phrase “at least” adds to the meaning, if anything.
The draftsperson could insert a glossary of terms, but most users of constitutions want to understand a rule without having to look for a glossary elsewhere. That said, the phrases “clear days” or “at least ‘x’ days” might better be explained in a glossary rather than by resorting to longer and possibly convoluted text.
Avoiding problems with “clear days” or “at least ‘x’ days”
Those giving notice of meetings should be aware that mail is sometimes (some might now assert, often) delayed, and some members will argue that they should receive “x” actual clear days notice of meetings (and some rules may well have that meaning). To avoid such arguments, it is sensible always to try to give more than the minimum period of notice. It should also be noted that a rule such as “The failure for any reason of any member to receive such notice shall not invalidate the meeting or its proceedings” has been held not to cure substantial non-compliance in a meeting notice, being “the primary obligation …, which is to give a stipulated period of notice to all members” (as in Reeves & Hartstone v Pauanui Sports and Recreational Club Inc, , CIV-2010-419-1599, Hamilton, 16 December 2010 at [58] – discussed in Clear days – Trouble at the Courts – anyone for tennis?LINK).
Summary
Where a number of “clear days” or “at least ‘x’ days” notice of the meeting are required to be given to members it is best to assume that the period of notice does not include the date the notice of meeting is posted or sent or the date of the meeting itself (Re Drury Coal Co Ltd (No 2) (1908) 28 NZLR 107, Re Amalgamated Distributors Ltd [1931] NZLR 648, and Queen City Residential Ltd v Patterson Co-Partners Architects Ltd [1995] 3 NZLR 307), noting that the exact wording of the rule may affect the interpretation (Body Corporate 166208 v Temple 88 Ltd [2016] NZHC 848). Fractions of a day should also be ignored (Cerissi Design & Marketing Ltd v Australian Rugby Union Ltd [1997] 3 NZLR 208). Even where the expression “clear days” or “at least ‘x’ days” is not used, the same principles may well apply (Mount Oxide Mines Ltd v Gould (1915) 15 SR (NSW) 290).
Where the proper period of notice is not given the meeting is likely to be held to be invalid and its proceedings a nullity (as in Woolf v East Nigel Gold Mining Co Ltd (1905) 21 TLR 660, and Kung v Country NZ Indian Association Inc [1996] 1 NZLR 663).
For specific advice about any of the issues discussed in this article, please contact Mark at mark@nfplaw.co.nz.