Can the Committee refuse to accept motions?
When such motions are submitted to the committee for inclusion on the next general meeting agenda, committees are left wondering how they are meant to deal with them. This is particularly so when the motions submitted are defamatory of owners or occupiers within the scheme.
The first idea that comes to mind is to completely reject the motion and not include it on the general meeting agenda…unfortunately though; this approach will breach the relevant regulation module that applies to your scheme.
The regulation modules require that all motions (provided they are submitted in time) be included on the next general meeting agenda. This rule applies regardless of the content of the motion.
This approach was confirmed by the adjudicator in Circle on Cavill  QBCCMCmr 409.
In that case, the committee had refused to include the applicant’s motions on the AGM agenda because, in their view, the motions were defamatory. The applicant applied to the Commissioner’s Office for various orders including declarations that the committee had acted unreasonably in rejecting her motions and that an EGM be convened to consider her motions. The adjudicator ordered that:
- The body corporate failed to comply with its statutory duty to include the motions submitted by the applicant on the agenda for the AGM; and
- The body corporate must include the applicant’s motions on the agenda for the next general meeting on which it is practicable to include the motions.
In considering the committee’s concerns about the allegedly defamatory motions, the adjudicator stated:
…there is simply no discretion for a committee to decide not to include a motion, regardless of the substance or impact of the motion.
If a committee is concerned that a motion submitted by an owner is invalid or unenforceable, that is not a basis to include the motion on the agenda. Rather, the motion must be listed on the agenda and then the chairperson can rule the motion out of order at the meeting.
We understand the hesitation felt by committee members when an owner submits motions for a general meeting that are impractical, unkind, defamatory or unenforceable. However, it is important for committee members to know that the legislature did cater for these situations in drafting section 111A of the Body Corporate and Community Management Act 1997 (BCCM Act).
Section 111A is titled ‘Protection of body corporate and committee from liability for defamation’ and essentially provides that the committee and body corporate will not be liable for defamation in circumstances where an owner submits a defamatory motion (including the explanatory note) for consideration at a general meeting.
It is absolutely crucial to understand that section 111A only applies to motions submitted by owners. As such, any motions submitted by the committee must not be defamatory; there is no protection from liability in circumstances where a committee submits a defamatory motion for consideration at a general meeting.
Whilst there is (unfortunately) no basis for refusing to include ridiculous motions on a general meeting agenda, in some circumstances, the person chairing the meeting may be able to rule the motion out of order. On this point, the adjudicator in Circle on Cavill relevantly stated:
“If a committee is concerned that a motion submitted by an owner is invalid or unenforceable, that is not a basis not to include the motion on the agenda. Rather, the motion must be listed on the agenda and then the chairperson can rule the motion out of order at the meeting.”
Unfortunately, ruling motions out of order is not as straightforward as it sounds. It can only be done in certain circumstances and there is a specific procedure that must be followed which we will discuss in a later article.
In concluding, we reiterate that:
- All motions submitted by owners for consideration at a general meeting, must, no matter how ridiculous, be included on the next general meeting agenda on which it is practicable to include the motions;
- Failure to include an owner’s motion on a general meeting agenda could result in an adjudicator finding that the committee failed to comply with its statutory obligations;
- A committee will not be liable for defamation in circumstances where an owner submits a defamatory motion for consideration at a general meeting; and
- Just because a motion has to be included on the agenda for a general meeting does not necessarily mean it will be voted on. There may be a basis upon which the chairperson can rule the motion out of order.
You can read more of the adjudicator’s reasoning the Circle on Cavill case here.
We have advised many committees on issues pertaining to defamatory motions, ruling motions out of order and general meeting procedures. Please don’t hesitate to get in contact with us if your committee would like our assistance.
Article written by Hynes Legal http://hyneslegal.com.au/