Governance and leadership discussions at the Better Boards Conference

Presentation

The End of Democracy as We Know It?

Derek Mortimer


Principal at DF Mortimer & Associates

LL.B, Grad Dip Legal Prac., Grad Cert Dispute Res.Admitted to practice in the Supreme Courts of NSW and Victoria.

Derek has a reputation for patience, diplomacy and fairness when assisting with the resolution of internal disputes within not for profit organisations. He is valued by his clients for his down to earth, empathetic approach to their needs for legal assistance.

Derek founded the Law Institute Victoria “Charities and Not for profit Law Committee” and served as its founding chair for 9 years. He continues to contribute submissions, presentations and articles to a variety of government agency reviews, public forums and peer reviewed journals. In particular Derek has contributed chapters on "Formation" and "Dispute Management" to the Thomson Reuters Not for Profit Best Practice Manual (2013).

This presentation will be based on a matter in the Magistrates Court of Victoria.

The first of four hearings occurred in April 2021. In this matter I act for a committee member of a national charity, incorporated as an association in Victoria. A central claim in the dispute concerns section 61 of the Victorian associations legislation: 61 Right of member to attend and vote at general meeting (1) At any general meeting of an incorporated association, the association must not do anything with the intention of preventing— (a) any member of the association from attending the meeting; or (b) any member who is entitled to do so from voting at the meeting.

The matter has not concluded, as a new Magistrate has been appointed for a hearing later this year. The first Magistrate was understood by my client to say that he “did not understand the legal niceties of not for profit law” and suggested a new Magistrate be appointed. I can say the first Magistrate did accept that my committee member client is acting in good faith - the Magistrate heard evidence of an early and open settlement offer to restore zoom access for an AGM (an offer which was allegedly ignored by the defendant committee faction).

What are the implications of this case on membership based NFPs if courts are not prepared to hear, consider and if proven, enforce the rights of members to attend and vote at AGMs?

Derek will discuss the issues and implications that the outcomes of this case may raise.



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