FEDERAL COURT OF AUSTRALIA
Australian Pipeline Limited v Alinta Limited [2007] FCAFC 55
Held (per Gyles and Lander JJ, Finkelstein J dissenting): On the evidence before the Court it could not be satisfied that before entering into the Heads of Agreement the first respondent did not have more than 20% interest in the fifth respondent by acceptances pursuant to the takeover bid and therefore a relevant interest in the fifth respondent’s downstream interest in the appellant.
Held (per Finkelstein, Gyles and Lander JJ): Pursuant to s 608(1)(c) and s 608(8) of the Corporations Act 2001 the first respondent acquired a relevant interest in the fifth respondent’s units in the appellant by entry into the Heads of Agreement.
Held (per Gyles and Lander JJ, Finkelstein dissenting): However this was not a contravention of s 606 of the Corporations Act 2001 because it was the same relevant interest acquired under the takeover bid and exempted by s 611, Item 1 of the Corporations Act 2001.
Held (per Finkelstein, Gyles and Lander JJ): The fourth respondent acquired a relevant interest in the fifth respondent’s units in the appellant by entry into the Merger Implementation Agreement pursuant to s 608(1)(c) and s 608(8) and thereby contravened s 606 of the Corporations Act 2001 – the Merger Implementation Agreement and other transaction implementation documents did not satisfy the terms of the ASIC Declaration modifying the operation of s 609(7) of the Corporations Act 2001 and therefore the first respondent could not rely upon the modified section to protect it from a contravention of s 606 when the first and second respondents made further on market acquisitions of units in the appellant - appeal allowed – matter remitted to primary judge to make orders consequent on finding of contraventions of s 606 of the Corporations Act 2001.
APPEAL – judicial review – appeal from decision of single judge of Federal Court of Australia on application for judicial review of declaration and consequential orders by the Takeovers Panel pursuant to Part 6.10 of the Corporations Act 2001 – whether the primary judge erred in finding the Panel erred in making a declaration of unacceptable circumstances pursuant to s 657A of the Corporations Act 2001 – whether primary judge erred in finding that the declaration of unacceptable circumstances was not linked with the Panel’s finding of a contravention of s 606 of the Corporations Act 2001 – whether Panel applied correct test in making the declaration of unacceptable circumstances pursuant to s 657A(2)(b) of Corporations Act 2001 – whether the Panel in declaring unacceptable circumstances and making consequential orders pursuant to s 657D was exercising judicial power in contravention of Chapter III of the Constitution.
Held (per Gyles and Lander JJ, Finkelstein J dissenting): In determining whether there was a contravention of the Corporations Act 2001 pursuant to s 657A(2)(b) and making a declaration of unacceptable circumstances and consequential divestment orders the Panel was exercising the judicial power of the Commonwealth contrary to Ch III of the Constitution – Panel declaration of unacceptable circumstances and orders based in part on s 657A(2)(b) and not severable – therefore invalid – s 657A(2)(a) may be invalid – relevant issues to be dealt with in related proceeding remitted to primary judge – not necessary to decide other judicial review grounds.
Held (Finkelstein J dissenting): The Panel was not exercising judicial power – other grounds of challenge to Panel’s decisions discussed.
Acts Interpretation Act 1901 (Cth) s 15A
Administrative Decisions (Judicial Review) Act 1977 (Cth)
ASTC Settlement Rules Rule 14.14
Australian Securities and Investment Commission Act 2001 (Cth)
Australian Securities Commission Act 1989 (Cth)
Companies (Acquisition of Shares) Act 1980 (Cth)
Companies (Acquisition of Shares) Amendment Act 1981 (Cth)
Companies and Securities Legislation (Miscellaneous Amendments) Act 1983 (Cth)
Contracts Review Act 1980 (NSW)
Corporations Act 1989 (Cth)
Corporations Act 2001 (Cth) ss 9, 58AA, 606, 608, 609(7), 611, 653A, 655A, 657A, 657C, 657D, 657E, 657EA, 657EB, 657G, 657F, 658A, 658B, 658C, 659B, 659C
Corporations (Victoria) Act 1990 (Vic)
Corporations Regulations 2001 (Cth) regs 1.0.02, 6.8.01, 7.1.03, 7.11.24
Judiciary Act 1903 (Cth)
Legislative Instruments Act 2003 (Cth) s 13
Statute Law (Miscellaneous Amendments) Act (No 1) 1982 (Cth)
The Constitution
Trade Practices Act 1974 (Cth)
Attorney-General (Cth) v Breckler (1999) 197 CLR 83 cited
Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 cited
Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 cited
Farbenfabriken Bayer AG v Bayer Pharma Pty Ltd (1959) 101 CLR 652 cited
Federal Commissioner of Taxation v Munro (1926) 38 CLR 153 cited
Fencott v Muller (1983) 152 CLR 570 cited
Glencore International AG (2005) 220 ALR 495 referred to
Hampton Court Ltd v Crooks (1957) 97 CLR 367 referred to
Huddart Parker & Co Pty Ltd v Moorehead (1908) 8 CLR 330 cited
Mikasa (NSW) Pty Ltd v Festival Stores (1972) 127 CLR 617cited
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 referred to
Pasini v United Mexican States (2002) 209 CLR 246 cited
Plaintiff S157/2002 v The Commonwealth 211 CLR 476 referred to
Precision Data Holdings Limited v Wills (1991) 173 CLR 167 distinguished
R v Gallagher (1963) 37 ALJR 40 cited
R v Trade Practices Tribunal (1969) 123 CLR 361 cited
Re A Company [1915] 1 Ch 520 cited
Re Cram (1987) 163 CLR 140 cited
Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 cited
Re Ranger Uranium Mines Proprietary Limited (1987) 163 CLR 656 cited
State of Victoria v Commonwealth of Australia (Industrial Relations Act Case) (1996) 187 CLR 416 cited
The Queen v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 referred to
Toll (FCGT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 referred to
Tower Software Engineering Pty Ltd; Pendant Software Pty Ltd v Harwood [2006] FCA 717referred to
TVW Enterprises Ltd v Queensland Press Ltd [1983] 2 VR 529 cited
Vetter v Lake Macquarie City Council (2001) 202 CLR 439 referred to
Walters v Cooper [1967] VR 583 cited
Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 cited
Wilkinson v Clerical Administrative and Related Employees Superannuation Pty Ltd (1998) 79 FCR 469 cited
3 Blackstone’s Commentaries, 413
Dietrich and Middleton, “Statutory Remedies and Equitable Remedies” (2006) 28 Australian Bar Review 136
Explanatory Memorandum to Corporate Law Economic Reform Program Bill 1998 (Cth)
Freeman on Executions, 2nd ed, 1888, 2
P Bingham, Judgments & Executions, (1815), p101 ff
AUSTRALIAN PIPELINE LIMITED (ACN 091 344 704) (IN ITS CAPACITY AS RESPONSIBLE ENTITY OF AUSTRALIAN PIPELINE TRUST (ARSN 091 678 778)) v ALINTA LIMITED (ACN 087 857 001) (NOW KNOWN AS ALINTA 2000 LIMITED), TREWAS PTY LIMITED (ACN 120 111 006), AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION, ALINTA MERGECO LIMITED (ACN 119 985 590) (NOW KNOWN AS ALINTA LIMITED) AND THE AUSTRALIAN GAS LIGHT COMPANY (ABN 95052167405 )
NSD 2123 OF 2006
NSD 2079 OF 2006
FINKELSTEIN, GYLES AND LANDER JJ
20 APRIL 2007
ADELAIDE (HEARD IN SYDNEY)
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| NEW SOUTH WALES DISTRICT REGISTRY | NSD 2123 OF 2006 |
| ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA |
| BETWEEN: | AUSTRALIAN PIPELINE LIMITED (ACN 091 344 704) (IN ITS CAPACITY AS RESPONSIBLE ENTITY OF AUSTRALIAN PIPELINE TRUST (ARSN 091 678 778)) Appellant
|
| AND: | ALINTA LIMITED (ACN 087 857 001) (NOW KNOWN AS ALINTA 2000 LIMITED) First Respondent
TREWAS PTY LIMITED (ACN 120 111 006) Second Respondent
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Third Respondent
ALINTA MERGECO LIMITED (ACN 119 985 590) (NOW KNOWN AS ALINTA LIMITED) Fourth Respondent
THE AUSTRALIAN GAS LIGHT COMPANY (ABN 95052167405 ) Fifth Respondent
|
| JUDGES: | FINKELSTEIN, GYLES AND LANDER JJ |
| DATE OF ORDER: | 20 APRIL 2007 |
| WHERE MADE: | ADELAIDE (HEARD IN SYDNEY) |
THE COURT ORDERS THAT:
1. The parties bring in short minutes of order to reflect the reasons for decision of the majority.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| NEW SOUTH WALES DISTRICT REGISTRY | NSD 2079 OF 2006 |
| ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA |
| BETWEEN: | ALINTA 2000 LIMITED (ACN 087 857 001) (FORMERLY KNOWN AS ALINTA LIMITED) First Appellant
TREWAS PTY LIMITED (ACN 120 111 006) Second Appellant
|
| AND: | TAKEOVERS PANEL First Respondent
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Second Respondent
AUSTRALIAN PIPELINE LIMITED (ACN 091 344 704) (IN ITS CAPACITY AS RESPONSIBLE ENTITY FOR THE AUSTRALIAN PIPELINE TRUST (ARSN 091 678 778)) Third Respondent
|
| JUDGES: | FINKELSTEIN, GYLES AND LANDER JJ |
| DATE OF ORDER: | 20 APRIL 2007 |
| WHERE MADE: | ADELAIDE (HEARD IN SYDNEY) |
THE COURT ORDERS THAT:
1. The parties bring in short minutes of order to reflect the reasons for decision of the majority.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| NEW SOUTH WALES DISTRICT REGISTRY | NSD 2123 OF 2006 |
| ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA |
| BETWEEN: | AUSTRALIAN PIPELINE LIMITED (ACN 091 344 704) (IN ITS CAPACITY AS RESPONSIBLE ENTITY OF AUSTRALIAN PIPELINE TRUST (ARSN 091 678 778)) Appellant
|
| AND: | ALINTA LIMITED (ACN 087 857 001) (NOW KNOWN AS ALINTA 2000 LIMITED) First Respondent
TREWAS PTY LIMITED (ACN 120 111 006) Second Respondent
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Third Respondent
ALINTA MERGECO LIMITED (ACN 119 985 590) (NOW KNOWN AS ALINTA LIMITED) Fourth Respondent
THE AUSTRALIAN GAS LIGHT COMPANY (ABN 95052167405 ) Fifth Respondent
|
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| NEW SOUTH WALES DISTRICT REGISTRY | NSD 2079 OF 2006 |
| ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA |
| BETWEEN: | ALINTA 2000 LIMITED (ACN 087 857 001) (FORMERLY KNOWN AS ALINTA LIMITED) First Appellant
TREWAS PTY LIMITED (ACN 120 111 006) Second Appellant
|
| AND: | TAKEOVERS PANEL First Respondent
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Second Respondent
AUSTRALIAN PIPELINE LIMITED (ACN 091 344 704) (IN ITS CAPACITY AS RESPONSIBLE ENTITY FOR THE AUSTRALIAN PIPELINE TRUST (ARSN 091 678 778)) Third Respondent
|
| JUDGES: | FINKELSTEIN, GYLES AND LANDER JJ |
| DATE: | 20 APRIL 2007 |
| PLACE: | ADELAIDE (HEARD IN SYDNEY) |
REASONS FOR JUDGMENT
FINKELSTEIN J:
1 The Australian Gas Light Company (AGL) and Alinta Limited (Alinta) (now Alinta 2000 Ltd) describe themselves as Australia’s leading energy infrastructure companies. They have interests in gas transmission and distribution networks and in electricity generation and distribution networks. By a series of complex agreements made and put into effect in 2006 AGL and Alinta “merged” their respective infrastructure operations. The question has arisen whether as a result of the agreements Alinta acquired a relevant interest in AGL’s 30 per cent interest in the Australian Pipeline Trust (APT) (a managed investment scheme) in contravention of s 606 of the Corporations Act 2001 (Cth). Alinta also purchased 10.25 per cent of the units in APT in circumstances which may have resulted in a further contravention of s 606. Australian Pipeline Ltd (APL), the responsible entity for APT, brought an action seeking declarations that the section had been contravened. The trial judge (Emmett J) found there was no breach. APL appeals that decision.
2 APL also applied to the Takeovers Panel for a declaration under s 657A that the acquisition of the 10.25 per cent parcel was an unacceptable circumstance. The Panel made the declaration. Alinta sought judicial review of the Panel’s decision. The judge refused that relief and Alinta appeals from that refusal.
3 It was convenient for both actions to be heard by the same judge as the issues in each were closely related. For the same reason both appeals were heard by a single Full Court.
4 The events begin in March 2006. Alinta was a public company whose shares were on the official list of the Australian Stock Exchange (ASX). On 13 March 2006 AGL announced that it intended to make a takeover bid for Alinta. Section 631 of the Corporations Act required AGL to make its offer for the shares within two months of the announcement. AGL’s bidder statement which contained the offer was sent to Alinta’s shareholders on 24 April 2006.
5 In the meantime, by what in the 1980s was known as the “pacman defence”, Alinta announced that it proposed to make a bid for all the shares in AGL except for the 19.9 per cent it already owned. AGL was also a public company whose shares were on the official list of the ASX. Alinta’s bidder statement containing its offer was sent to AGL shareholders in early April 2006. The offers were open for acceptance between 18 April 2006 and 31 May 2006.
6 Some time between 8 am and 9 am Eastern Australian Time on 26 April 2006 Alinta and AGL signed Heads of Agreement (commonly referred to by the parties as HOA) designed to bring to an end their competing hostile takeover bids. By the Heads of Agreement AGL and Alinta agreed to merge their infrastructure businesses. The arrangement was that Alinta shareholders as to 54 per cent and AGL’s shareholders as to 46 per cent would, through their shareholding in a new company (then referred to as Merge Co), own all AGL’s and Alinta’s infrastructure assets. This would require the transfer by AGL to the new entity of assets including its 30 per cent stake in APT. In the Heads of Agreement this interest fell within what were referred to as the “Alinta Scheme Assets”. The interest was valued at $363 million. Further, AGL shareholders, through a new company, would own AGL’s existing energy assets, together with 33 per cent of Alinta’s retail and cogeneration business in Western Australia with an option to acquire the balance over five years.
7 The following provisions in the Heads of Agreement are important. Clause 2 provided that: “AGL and Alinta have agreed all the key terms of their agreement as set out in this Heads of Agreement and intend to be immediately legally bound to the performance of those terms. However, AGL and Alinta agree that those terms will be restated in [a Merger Implementation Agreement] and other relevant transaction documents to give effect to the Transaction (elsewhere defined as Transaction Documents) in a form which will be fuller or more precise but not different in effect and the parties agree to use all reasonable endeavours to agree the MIA by the MIA Sunset Date.” Clause 4 recorded that: “Following the implementation of the Alinta Scheme of Arrangement, Alinta’s assets will include [among others, AGL’s] 30 per cent interest in APT”. Clause 16 provided that: “(a) AGL and Alinta will work together in good faith to determine the most efficient structure or structures to effect the implementation of the transactions contemplated by this HOA …; (b) The parties acknowledge that their current preferred structure is interdependent schemes of arrangement structured in the manner described in Schedule 12; (c) The parties agree and acknowledge that they will enter into Transaction Documents that are customary for a transaction of this nature, including [a Merger Implementation Agreement] …”. Clause 21 provided that: “Alinta is not permitted to dispose of, or grant any right in, over or in respect of the Alinta Scheme Assets in the period from Completion [defined as the completion of the transaction] to the First Anniversary [defined to mean the day which was one year after Completion].” Clause 23 provided that: “The transfer of the Alinta Scheme Assets is not conditional on approvals from any Public Authority (including ACCC approval).” Clause 30(c) provided that: “The parties’ obligations in relation to AGL’s securities in APT are subject to the parties obtaining, if necessary, ASIC relief within three months after the date of this HOA and this HOA does not confer any control over voting rights attaching to those APT’s securities”. It is common ground that the parties did not obtain any “ASIC relief”.
8 The means by which it was contemplated that the merger would be implemented was described in Sch 12. In summary those steps were as follows. A company, Merge Co, was to be established with an issued capital of two ordinary shares, one to be held by Paul Anthony (the CEO of AGL) and the other by Robert Browning (the CEO of Alinta). AGL and Alinta would procure a Merge Co subsidiary to acquire the entire issued share capital of Alinta under a scheme of arrangement for a consideration comprising Merge Co ordinary shares (the Alinta scheme). AGL and Alinta would procure the Merge Co subsidiary to acquire the entire issued share capital of AGL under a scheme of arrangement for a consideration comprising Merge Co ordinary shares and Merge Co converting shares (the AGL scheme). AGL and Alinta would procure AGL Energy (now a wholly owned subsidiary of Merge Co) to subscribe for and have issued to it a number of ordinary shares and loan notes in Alinta AGL (a new company) equivalent to 33 per cent of Alinta’s WA retail and cogeneration business after the issue. AGL and Alinta would procure that following the implementation of the Alinta scheme and the AGL scheme and the issue of shares and loan notes in Alinta AGL to AGL Energy, Merge Co buy back all Merge Co converting shares in consideration of Merge Co procuring the issue by AGL Energy of AGL Energy shares. Alinta would procure that Merge Co be admitted to the official list of ASX and that all Merge Co ordinary shares be listed for quotation on ASX. AGL would procure that AGL Energy be admitted to the official list of ASX and that all AGL Energy ordinary shares be listed for quotation on ASX.
9 Provision was made for the termination of the Heads of Agreement. Relevantly cl 28(b) provided that the Heads of Agreement would “automatically terminate if the MIA had not been entered into by the MIA Sunset Date” which was defined in the Dictionary in Sch 1 to be 31 May 2006 or later if agreed. In the event, the MIA was not executed until 2 June 2006.
10 The first question that arises is whether by the Heads of Agreement Alinta acquired a relevant interest in AGL’s units in APT (the AGL parcel) in contravention of s 606. Alinta admits having acquired a relevant interest in the AGL parcel but says that the interest was acquired before it entered into the Heads of Agreement pursuant to acceptances of offers under its takeover bid.
11 Section 606(1) provides that a person must not acquire a relevant interest in issued voting shares in a company if: “(a) the company is … a listed company …; (b) the person acquiring the interest does so through a transaction in relation to securities …; and (c) because of the transaction, that person’s or someone else’s voting power in the company increases: (i) from 20% or below to more than 20%; or (ii) from a starting point that is above 20% and below 90%.” It is necessary to note that an acquisition of a relevant interest which falls within one of the exceptions in s 611 will not result in a contravention of s 606(1): s 606(1A). An acquisition that results from the acceptance of an offer under a takeover bid is an exempt acquisition: s 611 item 1.
12 Section 608(1) provides that a person has a relevant interest in securities (relevantly shares or an interest in a managed investment scheme) if they are the holder of the securities (s 608(1)(a)); or have power to exercise, or control the exercise of, a right to vote attached to the securities (s 608(1)(b)); or have power to dispose of, or control the exercise of a power to dispose of, the securities (s 608(1)(c)). Further, s 608(3) provides that a person has the relevant interest in any securities that a body corporate has when the person’s voting power in that body corporate is above 20 per cent.
13 It was accepted on all sides that if Alinta acquired a relevant interest in the AGL parcel as a result of acceptances of offers under its takeover bid (taking it over the 20 per cent threshold and invoking s 608(3)) then whatever interest Alinta acquired under the Heads of Agreement in relation to that parcel would not result in a breach of s 606. This is because in that circumstance Alinta could not “acquire” an interest in securities in which it had already acquired an interest: see for example TVW Enterprises Ltd v Queensland Press Ltd [1983] 2 VR 529, although decided under a differently worded provision. The first issue to be considered, therefore, is whether Alinta had acquired more than 20 per cent of AGL shares before the Heads of Agreement were signed. For this task it is necessary to refer to further facts.
14 As at 25 April 2006 Alinta held 19.98 per cent of the issued capital of AGL. The Heads of Agreement were signed between 8am and 9am on the following day. On that day Alinta received acceptances in respect of a further 175,261 AGL shares, some 0.04 per cent of the capital. Of these, 77 acceptances related to 107,507 shares that were CHESS offeror initiated acceptances. CHESS is the acronym for the Clearing House Electronic Sub-register System operated by ASX Settlement and Transfer Corporation Pty Ltd (ASTC), a subsidiary of ASX. The acceptances were “processed” on 26 April 2006. So, at some point during that day Alinta’s interest in AGL increased to 20.02 per cent and, by the operation of s 608(3), it picked up a relevant interest in the AGL parcel. The question is whether the acceptances that were received on 26 April 2006 were processed before or after the Heads of Agreement were signed. If they were processed before 8am, there could be no finding of a contravention of s 606 whatever the effect of the Heads of Agreement. If they were processed after 9am, and if Alinta acquired a relevant interest in the AGL parcel by virtue of the Heads of Agreement, there would be a breach of s 606. If they were processed between 8am and 9am it would be impossible to determine whether or not the relevant interest was acquired in breach of s 606.
15 Before answering the question raised I must also refer to s 653A. That section provides that if “(a) an offer is made under an off-market bid for quoted securities; and (b) regulations made for the purposes of this paragraph set out any requirements for the manner in which the acceptance of the offer … must be complied with; an acceptance of the offer for those securities is effective only if it is made in that way”. Regulation 6.8.01 of the Corporations Regulations is also relevant. It provides that “if the operating rules of a prescribed CS facility require an acceptance of an offer to which paragraph 653A(a) applies to be made in a particular way … the acceptance must be made in that way”.
16 ASTC is a prescribed CS facility. A “CS facility” is a clearing and settlement facility (that is, an entity which provides a mechanism for parties to meet obligations arising from transactions in the financial markets) which is licensed as such under the Act. ASTC has rules which provide for the means by which takeover offers in relation to securities held in a CHESS holding must be accepted. The rules are known as the ASTC Settlement Rules. The applicable rule is r 14.14 which is headed “Takeover Acceptances”. Rule 14.4.2 provides that the acceptances of a bid for securities in a CHESS holding “must be initiated by a Valid Originating Message that is transmitted to ASTC ...”. There are definitions of “Valid” and “Originating Message” in r 2.13. There is no need to set them out. It is sufficient to note that they contemplate a valid message will be transmitted electronically following the input into the transmission facility of certain information concerning the acceptances. Rule 14.14.4 provides that: “If a Message complies with 14.14.2 and there are sufficient [shares] in the Holding specified in the Message, ASTC will reserve the number of [shares] specified in the Message in an Offer Accepted Subposition in favour of the Participant Bidder for the takeover bid”.
17 In my opinion, until the 77 CHESS offeror initiated acceptances were accepted in the way set out in r 14.14.4 Alinta acquired no interest in those shares. The trial judge, however, took a different view. He said that by completing and delivering the acceptance forms to Computershare Investor Services Pty Limited (Computershare), the company that was providing registry services to Alinta, “Alinta was placed in a position where it had power to dispose of, or control the exercise of, the power to dispose of the shares that were subject of the acceptance forms”. The unstated assumption behind this finding is that the common law rules of offer and acceptance apply to offers made under an off-market takeover bid. I respectfully disagree. In my view, the combined effect of s 653A, reg 6.8.01 and the ASTC Settlement Rules is that the ASTC rules alone regulate in what circumstances and by which process an offer can be accepted. Unless and until the relevant rules are complied with there is no acceptance of an offer and, accordingly, the offeror has acquired no rights in respect of the shares the subject of the acceptance. If the position were otherwise the acceptances would not fall within s 611, item 1.
18 It is therefore necessary to determine when the acceptances were processed. Two Computershare witnesses were called by Alinta. The first, Mr Farrant, was the team leader of Computershare’s Melbourne mailroom. He said the Computershare used a GPO Box address for incoming mail and that “in the ordinary course of business the contents of the GPO Box are usually delivered to Computershare by Messenger Post (an arm of Australia Post) daily by 8am.” The purpose of this evidence was to suggest that the acceptances processed on 26 April 2006 had been received by Computershare by 8am. The second witness, Mr Cain, was a project leader involved in managing corporate activities for clients, one of them being Alinta. Mr Cain said Computershare received more than one mail delivery each day. Thus the acceptances processed on 26 April had most likely been received throughout the day, with only some being received in the first delivery which arrived at around 8am. He went on to explain that when mail was received in the mailroom it was first opened (and I would add manually sorted) and then acceptances that required processing were delivered to the processing area. He was not aware how long it took to open the mail or when it would be delivered to the processing area. He did say that processing of acceptances took place from time to time during the course of the day. His answer to the question: “So it could be the case, in so far as an application by mail arrived at Computershare, that could have been processed either at 10 o’clock or at 2 o’clock or indeed at 7 o’clock on a particular day?” was: “Yes”.
19 The judge said that this evidence did not enable him “to be satisfied one way or the other as to whether a valid message had been transmitted to ASTC by or on behalf of Alinta in respect of the 77 acceptance forms in question, prior to the entry into of the Heads of Agreement”. I respectfully take a different view. In my view, the facts show that Alinta could not have acquired the 0.04 per cent parcel in time. That could only have happened if before 9am (at the latest): all the acceptances had been received (that is they all arrived in the 8am delivery); all the mail received at 8am (which no doubt included not only the acceptances but a good deal of other material) had been opened and sorted; all the acceptances had been delivered to the processing section; and all the acceptances had been processed. For all this to have happened in less than one hour is against the odds.
20 Having decided that Alinta did not have a relevant interest in the AGL parcel prior to the signing of the HOA, it is now necessary to consider whether, as APL contends, the Heads of Agreement gave Alinta power to control the exercise of the power to dispose of the AGL parcel. The judge thought it probably did not, but I am of opinion that the Heads of Agreement directly conferred that power. An important purpose of the Heads of Agreement was for Alinta to become the owner of the AGL parcel. That was made clear in cl 4, although this clause is more like a recital than a covenant or promise. However, the power to control the exercise of the power of disposal need not be by way of a promise. Section 608(2)(a) provides that the control includes control that is indirect and s 608(2)(b) that it can be exercised by an “agreement” which according to the definition in s 9 is a reference to a “relevant agreement” which in the same section is defined to mean an agreement, arrangement, or understanding whether formal or informal, whether written or oral, and whether or not having legal or equitable force. It seems to me that cl 4 points to an underlying understanding between AGL and Alinta that the AGL parcel would move from AGL to Alinta and that in the meantime AGL would retain the parcel.
21 But, as I say, the requisite power is more direct. The key provisions in the Heads of Agreement are cl 16(a) – by which the parties agreed to work together in good faith to determine the most efficient structure to effect the implementation of the transaction under consideration; cl 25 – a no shop and no talk provision which prevents AGL from participating in discussions with any person wishing to acquire an economic interest in all or a substantial part of AGL’s assets; and cl 21 – which prevented Alinta from disposing of the Alinta Scheme Assets (which included the AGL parcel) for one year. In my opinion by reason of these provisions if AGL took any step to sell the AGL parcel Alinta could, if it were so minded, obtain an injunction to restrain the sale as being an act in breach of contract. It could obtain the injunction because it is implicit in these provisions that AGL would retain the AGL parcel pending its transfer to Alinta.
22 There is one final observation I wish to make about the Heads of Agreement, for it might affect the kind of relief available for a contravention of s 606. I have mentioned that cl 28(b) provided for the automatic termination of the Heads of Agreement if the MIA was not entered into by 31 May 2006. I have also mentioned that the MIA was not executed until 2 June 2006. So far as I can tell, neither AGL nor Alinta intended the Heads of Agreement to come to an end on 31 May 2006. To the contrary, the recitals in the MIA recorded that: “A. AGL and Alinta entered into the HOA for the purpose of recording their agreement to implement the Transaction; B. Merge Co, AGL and Alinta have entered into this agreement to record in a fuller and more precise way the terms and conditions upon which they propose in good faith to implement the Transaction”. This suggests that each of AGL and Alinta was precluded from contending that the Heads of Agreement were at an end. But it is not necessary to go that far. It is sufficient to infer, as I do, that the parties had implicitly agreed to extend the life of the Heads of Agreement until the MIA was signed. This is confirmed by cl 33.10(b) of the MIA which provided that the MIA “prevails to the extent of any inconsistency with the HOA”; a provision that only makes sense if the HOA continued to be binding upon the parties.
23 I should mention in this connection, lest it be thought I have overlooked the point, the principle that where parties intend to immediately be bound by an agreement but at the same time propose to have the terms stated more fully in a later agreement, the later agreement when made will usually replace (that is discharge) the earlier one. There certainly will be an implied discharge if there is complete overlap in the terms. If there is only a partial overlap it may be that the first agreement remains in force at least in so far as it contains terms not found in, or not inconsistent with, the terms in the second agreement. I have not examined whether this is true in the instant case. It should be said, however, that cl 33.10(b) assumes this to be so.
24 There is another basis upon which APL asserts that Alinta acquired a relevant interest in the AGL parcel, namely by the MIA. The purpose of this part of the argument was not to found separate relief for a contravention of s 606 but as a foundation for an argument that a later purchase by Alinta of AGL units did infringe the section. Alinta also says that by reason of the MIA, Merge Co acquired a relevant interest in the AGL parcel and it did seek relief in respect of that alleged contravention. Here I should mention that in fact two MIA were executed. The first was the MIA entered into on 2 June 2006. By cl 28 provision was made for the “automatic termination” of the MIA if any of the Transaction Documents were not executed by 21 June 2006. There was a delay in the preparation of the Transaction Documents and they could not be executed by 21 June. But a new MIA, in all relevant respects the same as that dated 2 June, and the Transaction Documents were executed on 22 June 2006. The case against both Alinta and Merge Co is the same under each MIA.
25 To appreciate precisely how this alternative case is put it is necessary to refer to further facts. By the end of the day on 26 April 2006 Alinta held a little over 20.02 per cent of the AGL shares and thereby (as a result of s 608(3)) had a relevant interest in the AGL parcel. It is common ground that on 4 August 2006, as a result of the withdrawal of acceptances of offers in accordance with s 650E, Alinta’s interest in the AGL shares fell below 20 per cent. In consequence it no longer held a relevant interest in the AGL parcel through s 608(3). Now the argument is that Alinta acquired a relevant interest in the AGL parcel when it entered into the MIA or, alternatively, if it already had a relevant interest in the AGL parcel by reason of s 608(3) it acquired a relevant interest in the AGL parcel via the MIA immediately upon its holding in AGL falling below 20 per cent. In any event APL contends that Merge Co acquired a relevant interest in the AGL parcel when the MIA was executed.
26 In considering the effect of the MIA it is necessary to have regard to a declaration made by ASIC under s 655A. Section 655A authorises ASIC to declare that Chapter 6 of the Corporations Act (the chapter dealing with Takeovers) “applies to a person as if specified provisions were omitted, modified or varied as specified in the declaration.”
27 On 3 July 2006, ASIC made a declaration in the following terms:
“Pursuant to paragraph 655A(1)(b) of the Corporations Act 2001 (“Act”), the Australian Securities and Investments Commission (“ASIC”) declares that Chapter 6 of the Act applies to the person specified in Schedule A in respect of an agreement of the kind referred to in Schedule B and the class of securities specified in Schedule C, as if subsection 609(7) of the Act was omitted and replaced as follows:
‘A person does not have a relevant interest in securities merely because of an agreement if the agreement:
(a) is conditional on:
(i) a resolution under item 7 in the table in section 611
being passed; or
(ii) ASIC exempting the acquisition under the agreement from the provisions of this Chapter under section 655A; or
(iii) a scheme of arrangement approved by the Court under Part 5.1 taking effect; and
(b) does not confer any control over, or power to substantially influence, the exercise of a voting right attached to the securities; and
(c) does not restrict disposal of the securities for more than 4 months from the date when the agreement is entered into.
The person acquires a relevant interest in the securities when the condition referred to in paragraph (a) is satisfied.’
Schedule A
Alinta Limited ACN 087 851 001 (“Alinta”)
Schedule B
The Merger Implementation Agreement between Alinta, The Australian Gas Light Company ACN 052 167 405 (“AGL”), AGL Energy Limited ACN 115 061 375 and Alinta Mergeco Limited ACN 119 985 590 dated 22 June 2006 that is conditional on a Part 5.1 scheme of arrangement between AGL and its members taking effect.
Schedule C
Units in Australian Pipeline Trust ARSN 091 678 778
Dated: 3 July 2006”
Before I consider the effect of this declaration it is necessary to explain the scope and operation of the MIA.
28 The parties to the MIA were Alinta Merge Co Ltd (the new name for Merge Co), AGL, Alinta and AGL Energy Limited. The principal obligations imposed by the MIA were set out in cl 2. Clause 2.1 provided that “AGL agrees to propose the AGL Scheme” and that “AGL agrees with Merge Co and Alinta to perform its obligations under the AGL Scheme”. Clause 2.2 provided that “Alinta agrees to propose the Alinta Scheme”. Finally clause 2.3 provided that “Merge Co agrees with AGL and Alinta to perform its obligations under the AGL Scheme and Alinta Scheme …”. The description of the AGL Scheme was contained in cl 5 and a description of the Alinta Scheme in cl 6.
29 Clause 3.1 contained conditions precedent for the AGL Scheme. Relevantly cl 3.1 read: “The obligations of AGL and Merge Co to implement the AGL Scheme are subject to the satisfaction of each of the following conditions precedent … (a) that the AGL Scheme and the Alinta Scheme become Effective by the Sunset Date [the Sunset Date was defined as 31 December 2006 or later if agreed] … (g) that except for any AGL Approved Matter, none of the following events occurs or has occurred during the period from 26 April 2006 to 8am on the Second Court Date in relation to the AGL Infrastructure Businesses without Alinta’s prior written consent (such consent not to be unreasonably withheld or delayed) (i) … (ii) except where ancillary to a transaction which is permitted under paragraph (i), AGL or any Subsidiary of AGL Disposes of, makes an irrevocable offer to Dispose of, agrees to Dispose of, or comes under an obligation to Dispose of one or more companies, businesses or assets (or an interest in one or more companies businesses or assets), for an amount, or whose book value (as recorded in AGL’s balance sheet as at 31 December 2005) is in aggregate, greater than $45 million …” Only two definitions need be noted. The “Second Court Date” was defined to be the first day of the hearing of an application for orders under s 411 of the Corporations Act approving the AGL and Alinta schemes of arrangement and “AGL Infrastructure Businesses” was defined as “as business and activities undertaken by AGL other than the AGL Energy Business”. The AGL parcel is plainly covered by cl 3.1(g).
30 Clause 3.7(b) provided that Alinta alone had the benefit of the conditions precedent in cl 3.1(g) and any breach or non-fulfilment of such conditions may be relied upon only by Alinta. Clause 3.9 provided that to the extent within their control and subject to the terms of the agreement “each of AGL and Alinta agree[d] to use its best endeavours to implement the AGL Scheme and the Alinta Scheme as soon as practicable and, in particular, to procure that each of the conditions precedent in clauses 3.1 and 3.2 (as the case may be) is satisfied as soon as practicable after the date of [the MIA].”
31 Clause 17 is an important provision. By that clause AGL agreed with Alinta that it would, and would ensure that each of its subsidiaries would:
“carry on the AGL Infrastructure Businesses in the ordinary course of business consistent with the business practices of the AGL group … and including
(a) …;
(b) …;
(c) using best endeavours to obtain and maintain in full force and effect all material Authorisations required for the conduct of the AGL Infrastructure Businesses;
(d) …;
(e) …;
(f) maintain the businesses and assets which comprise the AGL Infrastructure Assets;
(g) to (n) …
The parties agree and acknowledge that … an action which is permitted under cl 3.1(g) would not constitute a breach of this clause 17.”
The AGL parcel is expressly included in the definition of AGL Infrastructure Assets.
32 Clause 22 was a no-shop no-talk provision. Clause 27 provided that Merge Co must not, and must procure that its subsidiaries would not, dispose of the AGL Infrastructure Assets from Completion to the date which is one year after completion. Termination was dealt with by cl 28. Among other things cl 28.1 provided that the MIA would automatically terminate if any of the Transaction Documents (that is a Relationship Deed, a Regulatory Deed and a Transaction Implementation Deed) was not executed by 21 June 2006. Clause 28.2 provided that neither Merge Co nor Merge Co Sub could terminate the MIA.
33 It is convenient now to consider whether the MIA gave Alinta power over the disposal of the AGL parcel. Clause 3.1(g) is important in this regard. Standing on its own cl 3.1(g) does not prohibit AGL from disposing of the AGL parcel. It merely records an event upon the occurrence of which Alinta may terminate the MIA. On the other hand, by cl 3.9 AGL promised to use its best endeavours to procure that the conditions precedent (including the condition in cl 3.1(g)) were satisfied. In substance this was a promise not to dispose of assets with a value of more than $45 million. The AGL parcel exceeded that value. Using the language of s 608, this promise conferred on Alinta the power to control the power to dispose of the AGL parcel. It was, in my opinion, a power that could be enforced in a court of competent jurisdiction, although I need not go that far for s 608 to apply.
34 Other provisions of the MIA give a like power, in my opinion. One is the no-shop no-talk provision. As well, I read cl 17(f) as a promise by AGL not to dispose of an AGL Infrastructure Asset. It will be recalled that by that clause AGL agreed to “maintain the businesses and assets which comprise[d] the AGL Infrastructure Assets.” “Maintain” can mean to keep or retain, or to keep in good condition. The judge thought it had the latter meaning. He said that if the parties had intended it to mean “to keep or retain” they would have used different language such as was used in cl 3.1(g) which specifically addressed the topic of disposal.
35 That argument does not, in my respectful opinion, have the force it might otherwise have had when in cl 17 itself the word “maintain” was used in the sense “to keep”, as it was in cl 17(c). There are other indications that “maintain” meant “to keep”. Many AGL Infrastructure Assets (the AGL parcel among them) were of a kind that to impose an obligation to keep them in good condition made no sense. In addition, there is the proviso to cl 17 that an act that was permitted under cl 3.1(g) (which was concerned with the disposal of assets) would not constitute a breach of the clause. Finally, it is important not to lose sight of the fact that the MIA was the repository of the arrangement by which Alinta and AGL agreed to merge their assets, one important aspect of which was that the AGL parcel would go to Alinta. With such an arrangement one would expect to find an obligation on AGL to keep intact those assets that on implementation would pass to Alinta. If such an obligation were not express (as I think it was), it would need to be implied.
36 I will now deal with the case against Merge Co. None of the covenants to which I have referred expressly conferred rights or privileges on Merge Co. While the MIA gave power over the AGL parcel to Alinta, it is less clear whether a like power was conferred on Merge Co. The trial judge was of opinion that the MIA conferred no rights on Merge Co. That is only partly true. Certainly, the benefit of the condition precedent that AGL not dispose of any assets (cl 3.1(g)(2)) was, as a result of cl 3.7(b), for the benefit of “Alinta alone”. In contrast, the benefit of the promises in cl 3.9 was not confined to AGL and Alinta. I suppose it is possible to read cl 3.9 to mean “each of AGL and Alinta agrees with each other to use its best endeavours, etc.” But the last sentence of the clause (which reads “The parties will provide to each other in a timely manner such information as reasonably requested to enable them to negotiate these documents.” (emphasis added)) suggests that the beneficiaries of the provision were not to be confined just to AGL and Alinta. I accept that the rights of Merge Co on a breach were not coterminus with the rights of AGL and Alinta. Clause 28.2 denied to Merge Co the right to terminate the MIA, although such a provision could prevent Merge Co from terminating for repudiation: see eg Walters v Cooper [1967] VR 583. I also think that the “no-shop no-talk” provision (cl 22) was intended to favour all parties. In my opinion, Merge Co acquired a relevant interest in the AGL parcel on 2 June 2006.
37 Strictly speaking this conclusion makes it unnecessary to consider the application of s 608(8). That section provides another avenue for the acquisition of a relevant interest in securities. To paraphrase its terms, if at a particular time (a) a person has a relevant interest in securities; (b) the person has entered into an agreement with another with respect to the securities; and (c) the other person would have a relevant interest in the securities if the agreement were performed, the other person is taken to already have a relevant interest in those securities. It seems to me that each of these conditions is satisfied in the case of Merge Co. AGL was a person with a relevant interest in the AGL parcel. AGL entered into an agreement (the MIA) with several other persons, including Merge Co. The agreement was, in part, “with respect to” the AGL parcel, in the sense that the agreement specifically dealt with that parcel. Finally, when the agreement was performed Merge Co acquired a relevant interest in the parcel.
38 As a result of finding that the MIA conferred power on Alinta to control the power to dispose of the AGL parcel, it is necessary to consider whether the ASIC declaration operated to prevent a finding that the MIA conferred on Alinta a relevant interest in the parcel. I note the ASIC declaration could not have undone any contravention of s 606 that occurred before 3 July 2006. However, if the declaration applies to the MIA then from the time of the declaration it could not be said that Alinta had a relevant interest in the AGL parcel by reason of the agreement.
39 APL has two bases for contending that the ASIC declaration does not apply. The first is that the MIA was not, as required by the ASIC declaration, “conditional on a scheme of arrangement approved by the Court.” The second is that the MIA did not satisfy the condition that “it [did] not restrict the disposal of the AGL parcel for more than 4 months from the date when the agreement [was made].”
40 The first ground can be disposed of in short order. The declaration required an agreement of the kind referred to in schedule B to be conditional on a scheme of arrangement approved by the Court. The agreement referred to in schedule B was the MIA dated 22 June 2006. The agreement was described as being “conditional on a Part 5.1 scheme of arrangement between AGL and its members taking effect.” APL contends that the MIA itself was not conditional upon a scheme of arrangement being approved, but accepts that AGL’s obligation to implement the AGL scheme was so conditioned. In my view there is nothing in the distinction. It is clear from the description of the MIA in schedule B that the draftsman of the ASIC declaration regarded it as being conditioned on a scheme of arrangement being approved by the court. I do not read the body of the declaration as imposing a different kind of obligation. When the ASIC declaration required the agreement to be conditional that was just a shorthand way of describing relevant terms of the MIA.
41 The second ground has substance. The relevant condition is that the agreement “does not restrict disposal of the [AGL parcel] for more than four months from the date [of the MIA]”. The restrictions on disposal in the MIA lasted for much longer. The MIA contemplated that the restrictions would remain in force until the Sunset Date – namely the 31 December 2006 or even later if that were agreed.
42 Alinta accepts this but says that the duration of the restriction on disposal can be found outside the MIA. The MIA contemplated that the Transaction Documents would be entered into, one being a Transaction Implementation Deed. Such a deed was executed on 22 June 2006 and amended on 18 August 2006. The deed contained a timetable for the times at which steps needed to be taken to give effect to the MIA. By cl 2.2 the parties agreed to do all things in their power or control to ensure that the timetable was met. The timetable provided for the Second Court Date (the first day of the hearing of the application for the approval of the schemes of arrangement) to be the 15 September. The timetable also assumed that court approval would be obtained on that day. By an amending deed the date was changed to 9 October. Both the first and second date were within four months of the MIA.
43 I am prepared to accept, as did the judge, that the Transaction Implementation Deed can be looked at to determine whether the ASIC declaration is applicable. There is no reason why the duration of the restriction need be mentioned in the MIA itself.
44 But the deed did not limit the restriction on the disposal of the AGL securities to less than four months. I can explain why the deed did not achieve this result by reference to an hypothetical example. Let it be assumed that in accordance with the timetable the applications for approval of the schemes of arrangement were made returnable on either 15 September 2006 or 9 October 2006. Let it also be assumed that there was an opponent to the schemes who was heard on the return day. Finally let it be assumed that the judge hearing the application reserved his decision for several weeks and did not make an order until some time in November, that is well outside the four month period. Did the restrictions on disposal bind AGL until the order was made? I am in no doubt they did. All that cl 2.2 required of the parties was to do what was in “their power and control”, and no more. In the hypothetical circumstances, that the judge reserved his decision was beyond the parties’ control. In the meantime, (that is pending the decision) there was nothing in any of the Transaction Documents that cut down the obligation imposed upon AGL by the MIA not to dispose of the AGL parcel. The result is that the ASIC declaration could not apply to the MIA because the restraint on the disposition of the AGL parcel was not limited to four months.
45 Between 16 August and 22 August 2006 Alinta (through its subsidiary Trewas Pty Ltd) purchased approximately 10.25 per cent of the units in APT. If Alinta did not at that time have a relevant interest in the AGL parcel, that acquisition would be lawful. But, as I have found it did have a relevant interest in the AGL parcel there was a contravention of s 606 as Alinta’s voting power in APT increased from the 30 per cent it had acquired under either the Heads of Agreement or the MIA to approximately 40.25 per cent.
46 The acquisition in August also gave rise to the proceeding before the Takeovers Panel for a declaration under s 657A that the acquisition constituted unacceptable circumstances. The Panel has power to make such a declaration if it appears to the Panel: “that the circumstances are unacceptable having regard to the effect of the circumstances on: (i) the control, or potential control of the company or another company” (s 657A(2)(a)); or, “(b) are unacceptable because they constitute or give rise to a contravention of a provision of [Chapter 6]” (s 657A(2)(b)).
47 In exercising its powers the Panel must have regard to certain matters including the purposes of, and provisions in, Chapter 6 (s 657A(3)) and may have regard to any other matter it considers relevant (s 657A(3)(b)). If it makes a declaration the Panel may make orders of a kind mentioned in s 657D(2)(a) to (d) provided it is satisfied that the orders will not unfairly prejudice any person. If an order is made it is an offence to contravene the order: s 657F. In addition, the order may be enforced by the Court on an application by ASIC, the President of the Panel, a person to whom the order relates or a party to the proceeding before the Panel: s 657G.
48 Following a hearing the Panel made the declaration. The Panel also made orders vesting the 10.25 per cent parcel in ASIC, directing that the parcel be sold and the net proceeds be paid to Alinta.
49 Alinta applied for internal review under s 657EA. The Review Panel (which for convenience I will refer to simply as the Panel) found that: “The Acquisitions [of 10.25 per cent parcel] constituted or gave rise to a contravention of s 606 of the Corporations Act”. It also found that “the Acquisition, when considered in the context of the relief granted by ASIC, the forthcoming Schemes of Arrangement and the existing total of [30% of the] units in APT by AGL, have, or are likely to have an effect on the control of potential control of APT” Accordingly the Panel made a declaration that the Acquisitions were unacceptable circumstances having regard to the fact that the Acquisitions constituted, or gave rise to, a contravention of section 606 of the Corporations Act, and the effect of the Acquisitions or the control or potential control of APT.” The Panel considered that divestment orders under s 657D were appropriate to protect the rights or interests of unitholders in APT and orders to that effect were made.
50 The Panel’s declaration and orders were challenged in the judicial review proceeding on two distinct bases. First it was said that s 657A and s 657D provide for the exercise of the judicial power of the Commonwealth and are therefore contrary to Chapter III of the Constitution. The second basis assumed the Panel had power to deal with the application and was that the Panel had in several respects misdirected itself in law. As a matter of convenience, I will deal with the second basis first.
51 The best place to begin is with an explanation of how the Panel arrived at its decision. In the first instance the Panel investigated whether circumstances were unacceptable because of a contravention of a provision of Chapter 6, permitting a declaration to be made through the gateway provided by s 657A(2)(b). In this respect the Panel considered whether, as a result of the MIA or the acquisition of the 10.25 per cent parcel, Alinta breached s 606.
52 The Panel found that when it entered into the MIA Alinta already had a relevant interest in the AGL parcel by reason of it holding more than 20 per cent of the shares in AGL. It said that although the MIA gave Alinta a relevant interest in the AGL parcel, the MIA did not increase Alinta’s voting power in APT and therefore there was no contravention of s 606. The Panel stated that: “Had Alinta not acquired a relevant interest in the AGL parcel on 26 April 2006, the Panel considered that Alinta would have breached s 606 on 1 June and again on 22 June 2006 by entering into the MIA.” It noted that ASIC had advised Alinta when it granted the declaration under s 655A that the declaration would not protect against or undo the effect of any previous acquisition of a relevant interest in the AGL parcel.
53 The Panel explained why in its view Alinta had acquired a relevant interest in the AGL parcel by reason of the MIA. “The Panel considered that section (scil clause) 3.1(g)(ii) of the MIA gave Alinta both effective and actual power to control the disposal of the AGL parcel.”
54 The Panel then examined whether that power should be disregarded because of the ASIC declaration. It concluded that: “[T]he MIA was an agreement which gave Alinta a relevant interest in the AGL Parcel and which restricted the disposal of the AGL Parcel. But it was not an agreement which limited the period within which AGL was restricted from disposing of the AGL Parcel to a period of less than four months. On the terms of the MIA, at the relevant times, AGL was restricted from disposing of the AGL Parcel until 31 December 2006 or such earlier time as the Second Court Date occurred.” For this reason, so the Panel said, the MIA did not satisfy the terms of the ASIC declaration. In arriving at this conclusion the Panel did not have regard to any Transaction Document.
55 In my view the Panel’s failure to have regard to the Transaction Implementation Deed was an error. However, for reasons that I have explained, this error did not cause the Panel to reach an incorrect conclusion. That is to say if the Panel were to have had regard to the Transaction Implementation Deed its conclusion should have been the same.
56 Having concluded that the MIA was not covered by the ASIC declaration the Panel said that the acquisitions in August 2006 resulted in a contravention of s 606. The Panel then found that the circumstances (namely the acquisitions) were unacceptable “because they constituted or gave rise to a contravention of s 606.”
57 Notwithstanding this conclusion the Panel went on to consider whether the circumstances were unacceptable having regard to their effect on the control or potential control of APT and whether a declaration ought be made through the gateway of s 657A(2)(a)(i). The Panel introduced its consideration of this topic by stating that “even if the ASIC Declaration was effective to relieve Alinta of the relevant interest it acquired under the MIA and the Acquisitions did not give rise to a contravention of s 606, that only ha[d] the consequence that s 657(A)(2)(b) does not apply to the Acquisitions. However, it does not prevent section 657A(2)(a) from applying”. I pause to note that the Panel did not state that it would also consider the case under s 657A(2)(a)(i) on the assumption, contrary to its finding, that the MIA did not confer power on Alinta to control the exercise of the power to dispose of the AGL Parcel.
58 The Panel decided that the circumstances were unacceptable “because (in broad summary) the Acquisitions, when considered in the context of the AGL parcel, the Schemes, and the relevant interest in the AGL parcel that Alinta would obtain following implementation of the Schemes, had, or were likely to have: (a) increased the degree of control Alinta will have over APT if the Schemes were approved; and (b) increased the likelihood of Alinta controlling APT i.e. affected the potential control of APT; and (c) further deterred any rival bidders who may have considered bidding for control of APT prior to the Schemes.”
59 The Panel expanded on this “broad summary”. It stated that “[w]ith the AGL parcel apparently closely tied to Alinta, there was only 70% of APT which was available to a rival acquirer.” Moreover, it stated that following the acquisitions, Alinta “had its foot on” 40% of APT. The Panel explained that by the expression “had its foot on” it meant that “the market, APT and … Alinta considered that for all intents and purposes, Alinta had power to control the disposal of the parcel, and it was unavailable to any other person without Alinta’s consent.”
60 The Panel then examined the acquisitions from various other aspects to determine whether they were unacceptable circumstances. First, it found that the existence of the AGL parcel might have “deterred some potential bidders for APT, especially given that there had been no indication that AGL was free to dispose of the AGL parcel to the highest bidder in the period between Alinta and AGL entering the Heads of Agreement on 26 April 2006 and the implementation of the Schemes.” On this basis, the Panel considered that the acquisitions would be likely to have an effect on the control or potential control of APT.
61 Secondly, the Panel considered whether the acquisitions were unacceptable having regard to the purposes of Chapter 6. It decided that the acquisitions offended those purposes. It noted that absent the ASIC declaration Alinta would have been prevented from making the acquisitions while the MIA was in place. It observed that Alinta had sought to acquire units in APT in circumstances where unitholders in APT were not given “the opportunity to approve or reject the increase in control over the level of the AGL parcel”. It said that “[e]ven if Alinta had the benefit of the ASIC Declaration, it was at risk of having the Acquisitions declared to be unacceptable circumstances if it took advantage of the ASIC Declaration to make further acquisitions of APT units where the APT unitholders would not have an opportunity to approve or reject the additional acquisitions or sufficient information to assess the Acquisitions.”
62 Next, the Panel considered the acquisitions in the context of the MIA and the proposed schemes of arrangement and in the light of the purposes of Chapter 6 as set out in s 602. It concluded that the acquisitions “did not promote an efficient competitive or informed market for the acquisition of control over units in APT, nor were APT unitholders provided with sufficient information to assess the merits of the Acquisitions in the context of the MIA and the Schemes, nor did the Acquisitions afford all unitholders in APT a reasonable and equal opportunity to participate in the benefits offered by Alinta … when Alinta made the Acquisitions”. The Panel “concluded that the interests of APT unitholders suffered, against the purposes of Chapter 6, by any contest for control being largely closed off by the Acquisitions, when considered in the context of the MIA and the Schemes”.
63 In relation to the ASIC declaration, the Panel said that “Alinta should have disclosed its intention to acquire further units in APT to ASIC. Had it done so ASIC may well have made it a condition of the ASIC Declaration that Alinta not acquire any units in APT prior to the implementation of the Schemes or the MIA lapsing, and in the Panel’s view this would have been appropriate.”
64 The Panel referred to a submission by Alinta that if it had acquired 10 per cent of APT before entering into the Heads of Agreement the acquisition would have been exempt under s 611, item 14, which exempts from s 606 an acquisition through the acquisition of a listed company. In the course of rejecting this submission as being an inappropriate analogy the Panel said: “[U]nitholders in APT should not have expected that a person could gain control over 30% of APT via an agreement such as the MIA and then, under the protection of s 609(7) actively acquire more units in APT, with the apparent intention of gaining control over APT, prior to the implementation of the Schemes.”
65 Alinta’s intentions were looked at for the purpose of determining whether item 14 would have been abused. The Panel said that one of Alinta’s objects was to obtain control of APT. It then said that it “considers that, in the context of APT, 30% and certainly 40%, would equate to control (particularly in light of the significant retail holding).” In the result the Panel found that the acquisitions were not in accordance with the purposes of Chapter 6.
66 Accordingly the Panel concluded that a declaration of unacceptable circumstances should be made.
67 The first error alleged by APL is based on the judge’s finding that Alinta had not contravened s 606. It will be remembered that the judge was of opinion that the MIA did not create a relevant interest in the AGL parcel because Alinta had previously acquired the interest when it received acceptances pursuant to its takeover bid for more than 20% of AGL shares. The argument is that the two independent bases the Panel identified for making the declaration (the contravention of s 606 and the likely effect on control) were, or might be, intertwined in the way that was impossible for the Panel to disentangle if it were wrong on one limb. Another way of putting this ground is that when the Panel considered whether these were unacceptable circumstances under s 657A(2)(b) it approached its consideration of that issue on the false assumption that the MIA gave Alinta power to control the power to dispose of the AGL Parcel, albeit the power not protected by the ASIC declaration.
68 It was accepted that if the MIA did (as I have found) give Alinta power to control the disposal of the AGL Parcel this ground could not be made out. Though this disposes of the point, I will briefly express my opinion on the assumption that the judge was correct in holding that the MIA conferred no power of control.
69 The judge found the ground was not made out in any event [at 129]. He said:
“I consider that, on a fair reading of the Panel’s reasons, the Panel’s conclusion that the relevant circumstances were unacceptable, having regard to their effect on control or potential control of the Trust was reached quite independently of the Panel’s conclusion that the relevant circumstances were unacceptable because they constituted or gave rise to a contravention. The Tribunal considered both questions separately and reached its conclusion concerning contravention before embarking on a consideration of the effect of the circumstances or control or potential control.”
70 If it were necessary, I would have reached a different conclusion. A close examination of the Panel’s reasons shows, on one hand, that from time to time its approach did not depend upon the MIA giving an interest over the AGL parcel to Alinta. For example, on several occasions the Panel expressed concern about the control Alinta would obtain once the parties performed their obligations under the MIA. I have already referred to some of the relevant passages from the Panel’s reasons. It will also be recalled that the Panel was troubled by what it saw as Alinta having “had its foot” on the AGL parcel. The Panel’s reasons show that this was a reference to something less than control. The Panel described the situation as being control “for all intents and purposes”, which I take to be less than the kind of control needed for the acquisition of a relevant interest. In my view the Panel’s description of the situation as viewed from the perspective of “the market, APT and … Alinta” was justified.
71 On the other hand, it is impossible to deny that there are statements in the Panel’s reasons where it says, in terms, that Alinta had acquired control over the AGL parcel through the MIA. It is difficult to know whether, when read in context, those statements show that the Panel arrived at its decision on a false premise, assuming of course that the judge was right in his analysis of the MIA. I am in two minds whether the ground would be made out, but, erring on the side of caution, I would have set aside the decision.
72 The second alleged error is that the Panel failed to give proper consideration to the existence of the ASIC declaration. Alinta contends that ASIC’s decision to grant the declaration was a relevant consideration and that it was wrong for the Panel merely to assess the circumstances as if compliance or non‑compliance were neutral, as they appear to have done.
73 Once it is accepted that the MIA does not meet the requirements of the ASIC declaration this ground falls away. In any event, the point is not a good one. In substance Alinta’s argument is that the acquisition of power to control the disposal of the AGL parcel through the MIA should not be counted against it when considering whether there are unacceptable circumstances because if the acquisition could lead to such a finding ASIC would not have made the declaration under s 655A. For present purposes I am prepared to proceed on the basis that if the only acquisition of a relevant interest was via an agreement covered by an ASIC declaration it would be difficult to hold the acquisition to be unacceptable circumstances. But it was not wrong for the Panel to consider, as it did, the circumstances produced by the combination of the acquisition of power to control the disposal of the AGL parcel under the MIA and the later purchase by Alinta of units in APT. Not only did the Panel not err in approach, in my view it was required to give consideration to the effect of the two acquisitions.
74 The third alleged error is that the Panel failed to apply the correct test when assessing whether the circumstances were unacceptable. To recapitulate, s 657A(2) permits the Panel to make a declaration of unacceptable circumstances “if it appears to the panel that the circumstances … are unacceptable having regard to the effect of the circumstances on … the control or potential control of [APT]”. Alinta submits that the Panel did not approach the case on this basis but instead looked at the effect or likely effect of the circumstances on the control or potential control of APT.
75 In the course of its reasons the Panel certainly looked at the consequences that the acquisitions were likely to have on the control or potential control of APT. It decided that the acquisitions would likely have an effect on that control or potential control. In particular, the Panel said that with the acquisitions Alinta had its “foot on” 40 per cent of the units and that would deter others from seeking to acquire AGL’s units.
76 In my opinion, however, the Panel did not apply an incorrect test. For one thing it did on occasion state the correct test. For example, in its opening statement the Panel identified the task it had set for itself as being to consider whether the effect of the acquisitions in the context in which they occurred “on the control or potential control of APT”. Further, when the Panel used expressions such as “likely to be” it was, in my view, engaging in fact finding or making predictions about future events. That is to say, the Panel was using the yardstick of “likelihood” for the purpose of determining whether or not asserted facts were true and in deciding what might happen in the future. It was appropriate for the Panel to make findings on that basis.
77 On this aspect my view accords with that of the judge who said:
“The Panel’s power to make a declaration of unacceptable circumstances is enlivened if it appears to the Panel that the circumstances are unacceptable, having regard to their effect on control or potential control. That requires a judgment. The Panel must direct its attention to some specific effect of the circumstances on either control or potential control. The Panel has directed its attention to specific effects, as those effects bear on control or potential control of the Trust. I do not consider that the Panel’s use of the phrases in question signifies anything more than the degree of certainty with which it appeared to the Panel that the circumstances have the relevant effect.”
78 The final argument to be considered is that ss 657A and 657D purport to confer judicial power on the Panel rendering those sections invalid. Before embarking on this issue it is useful to recall the comments of Isaacs J in Federal Commissioner of Taxation v Munro (1926) 38 CLR 153, 180:
“It is always a serious and responsible duty to declare invalid, regardless of consequences, what the national Parliament, representing the whole people of Australia, has considered necessary or desirable for the public welfare. The Court charged with the guardianship of the fundamental law of the Constitution may find that duty inescapable. Approaching the challenged legislation with a mind judicially clear of any doubt as to its propriety or expediency--as we must, in order that we may not ourselves transgress the Constitution or obscure the issue before us--the question is: Has Parliament, on the true construction of the enactment, misunderstood and gone beyond its constitutional powers? It is a received canon of judicial construction to apply in cases of this kind with more than ordinary anxiety the maxim Ut res magis valeat quam pereat [that the thing may have effect rather than fail]. Nullification of enactments and confusion of public business are not lightly to be introduced. Unless, therefore, it becomes clear beyond reasonable doubt that the legislation in question transgresses the limits laid down by the organic law of the Constitution, it must be allowed to stand as the true expression of the national will.”
79 With this in mind, it is best to begin with a discussion of judicial power. It has proved to be impossible to lay down an exhaustive definition: Precision Data Holdings Limited v Wills (1991) 173 CLR 167, 188. A good working definition, though, was provided by Griffith CJ in Huddart Parker & Co Pty Ltd v Moorehead (1908) 8 CLR 330, 357 namely “the power … to decide controversies between … subjects or between, [the Crown] and its subjects … The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.”
80 Griffith CJ did not discuss all the characteristics of a decision made in exercise of judicial power. Later cases have. Generally, the decision must be one which affects rights or obligations arising from the operation of the law upon past facts or occurrences: R v Gallagher (1963) 37 ALJR 40, 47; Re Cram (1987) 163 CLR 140, 148-9. This may be contrasted with a decision that is not concerned to resolve a dispute about existing rights or obligations, but determines what legal rights should be created for the future. That kind of decision-making does not involve judicial power: Re Ranger Uranium Mines Proprietary Limited (1987) 163 CLR 656, 666.
81 Also important in deciding whether a tribunal is exercising judicial power is the process by which the tribunal arrives at its decision. So, if the decision is determined not so much by the application of legal principles to ascertained facts and events or by reference to an objective standard, but is informed by considerations of policy or the subjective evaluation of the consequence of things or by matters not specified by the legislation, the power being exercised is unlikely to be judicial: Precision Data Holdings (1991) 173 CLR at 189, 191. In Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, 268 the High Court explained that a decision of the latter kind does not determine rights and obligations “according to law. That is to say, it [a judicial decision] does so by the application of a pre-existing standard rather than by the formulation of policy or the exercise of an administrative discretion.”
82 Going back to Griffith CJ’s formulation, an important attribute of a judicial decision is that it must be “binding and authoritative”. This raises several considerations. First, decisions that are subject to general judicial review are usually not binding in the sense that judicial determinations are: Precision Data Holdings (1991) 173 CLR at 191; The Attorney-General for the Commonwealth v Breckler (1998) 197 CLR 83, 108.
83 Secondly, to be “binding and authoritative”, a decision must be enforceable. The doctrine of enforcement is of ancient pedigree. It is the formal process by which a party entitled to the benefit of a judgment may obtain that benefit. It is the “practical forcing power of the law” which carries the judgment into effect: Freeman on Executions, 2nd ed, 1888, 2. In Re A Company [1915] 1 Ch 520, 527 Phillimore LJ explained that “it is the old common law process by which the sheriff in obedience to one of the common law writs procures for a judgment creditor the fruits of his judgment.”
84 The traditional way of enforcing a judgment of a common law court was by the use of a judicial writ addressed to the county sheriff. There were many different types of common law writs of execution and which was selected depended on the form of the action and the nature of the judgment. For example, in real actions, the writs of habere facias seisinam (for freehold interests) and habere facias possessionem (for chattel interests)were directed to the sheriff commanding him to give actual possession of the real property in question to the plaintiff. In actions for personal property, upon a replevin, the writ of execution was the writ de returno habendo and successful plaintiffs in detinue had a distringas to compel the defendant to deliver the goods or a scire facias against a third party in possession: 3 Blackstone’s Commentaries, 413. In money actions, by the writ of capias ad satisfaciendum (commonly called ca sa), a judgment debtor could be seized and imprisoned until the debt was paid (unless he fell within one of the exceptions such as peers of the realm, parliamentarians and servants of the king). The rule at common law was that, with some exceptions, land was not subject to execution of a money judgment at the suit of a commoner but, in certain limited circumstances, the writ of levari facias was used to direct the sheriff to levy a judgment debt from the goods and profits of the debtor’s land. When neither land nor the profit from it was sought to satisfy the judgment, the writ of fieri facias (fi fa) was issued. It gave authority to the sheriff “for the seizure and sale of every thing that is a chattel, belonging to a defendant, except his necessary apparel. Even of two gowns, one may be taken.” See generally, P Bingham, Judgments & Executions, (1815), p101 ff. In 1285, the Statute of Westminster, introduced an alternative procedure called elegit which allowed a judgment creditor to elect to have the debtor’s goods and a moiety of his land delivered to him as passive security for the judgment debt. In practice this operated like a mortgage over the land until the debt was paid. This greatly broadened the extent to which freehold land could be subject to judgment debts. Under the writ of extendi facias (or “extent”) the sheriff could immediately seize goods, land, debts and even the person of the defendant. Further common law writs included the venditioni exponas and the liberate. In Chancery, by the fifteenth century the practice was to enforce judgments by a writ of execution and, if that failed, by a writ of attachment, an injunction to deliver possession and a writ of assistance to the sheriff.
85 The demise of taught Latin and the progress of the plain English theorists have meant that many of these instruments, which have served the law since at least the thirteenth century, have suffered the fate of being given new names. Today, judgments are most commonly enforced by committal or sequestration or attachment or by the appointment of a receiver or, less commonly, by holding the defendant in contempt. Whatever the nomenclature used, the nature of enforcement is the same: it is to put the judgment into effect. This is entirely different from punishing or criminalising a party for failing to carry out the orders.
86 The importance of enforceability was emphasised by Barton J in Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434, 451 where he adopted the following definition of judicial power which had been given by Justice Miller of the Supreme Court of the United States: “It is the power of a Court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.” Barton J then said “It is important to observe that the judicial power includes with the decision and the pronouncement of judgment the power to carry that judgment into effect between the contending parties. Whether the power of enforcement is essential to be conferred or not, when it is conferred as part of the whole the judicial power is undeniably complete.”
87 Later cases (many are collected in Brandy 183 CLR at 268-269) have further developed this doctrine making clear that the power of enforcement need not be conferred on the tribunal itself. The Commission’s decision in Brandy was enforceable because registration in the registry of the Federal Court immediately and automatically gave the decision the force of a Federal Court decision. It could then be enforced like any other Federal Court order. That is, registration converted a non-binding, unenforceable decision into a binding curially-enforceable determination.
88 Further, if a tribunal’s decision “constitutes the factum by reference to which” rights and obligations become enforceable that will not necessarily involve judicial power: R v Trade Practices Tribunal (1969) 123 CLR 361, 378. Put another way, or putting it in the way it was put in Breckler, if the enforcement of a decision depends upon “an independent exercise of judicial power” the tribunal’s decision is not relevantly “binding and authoritative”. In Brandy, for example, if it were not for the ability to register and immediately enforce the Commission’s decision, the decision would not be in exercise of judicial power: Brandy 183 CLR at 269.
89 In the light of the foregoing discussion, in the absence of a constitutionally valid ouster clause (sometimes called a “privative” or “no certiorari” clause) to make a tribunal’s decision “binding” and in the absence of a mechanism for the immediate enforcement of a tribunal’s decision to make the decision “authoritative”, it would be difficult to conclude that the tribunal is exercising judicial power.
90 There is one final aspect of judicial power I wish to mention before applying the applicable principles to the Panel. Whether or not a tribunal is exercising judicial power may in part depend upon the character of the repository of the power. There is a line of cases, collected in Pasini v United Mexican States (2002) 209 CLR 246, 254, which establish “that there are some powers which appropriately may be treated as administrative when conferred on an administrative body and as judicial when conferred on a federal court or court exercising federal jurisdiction”. In other words, a power which may in some circumstances be regarded as judicial may, depending on the character of the body upon which the power is conferred, in other circumstances be regarded as administrative: Farbenfabriken Bayer AG v Bayer Pharma Pty Ltd (1959) 101 CLR 652, 659-660.
91 In applying these principles to the facts, the first point of importance is to emphasise what the Panel does not do. It does not determine whether there has been a contravention of the Corporations Act and if there has make a declaration to that effect and then impose something in the nature of a penalty for the contravention. I accept that if this were the Panel’s function it would be impossible to avoid the conclusion that it had impermissibly been conferred with judicial power. An examination of the relevant statutory provisions shows that the Panel’s true function is of a different character.
92 The principal power entrusted to the Panel is that conferred by s 657A, namely to make a declaration of unacceptable circumstances. The circumstances in which the Panel may make such a declaration are confined. A declaration can only be made if it appears to the Panel that the circumstances are unacceptable: (a) because of their effect on (i) the control or potential control of a company; or (ii) the acquisition or proposed acquisition by a person of a substantial interest in that company; or (b) because they constitute or give rise to a contravention of a relevant provision of the Corporations Act: see generally s 657A(2). Whatever be the appropriate pathway to a declaration, the Panel can only act (that is, make a declaration and then any appropriate order) if it finds that the circumstances are unacceptable. It may be that those circumstances are constituted by facts that amount to a contravention of the Corporations Act. However not all contraventions will result in a declaration. Many contraventions would be so insignificant that only an entirely unreasonable Panel could conclude they amounted to unacceptable circumstances. More to the point, in order to arrive at a decision the Panel is required to consider the matters enumerated in s 657A(3) and, by reason of s 657A(3)(b), it may have regard to any other matter it considers relevant. This shows that deciding whether the facts as found give rise to a contravention of a provision of the Corporations Act is only one step along the path of deciding whether or not there are unacceptable circumstances justifying a declaration under s 657A. Admittedly, it may be an important step but not one that of itself could lead to the conclusion that the tribunal is exercising judicial power.
93 Once it is accepted that the Panel does not decide whether a person has contravened a provision of the Corporations Act and in consequence impose punishment for that contravention, two conclusions follow. The first is that the Panel is not concerned with the ascertainment or enforcement of existing rights. No such rights are brought into question in proceedings before the Panel. Hence, a declaration of unacceptable circumstances, if made, does not resolve any dispute about legal rights. The second conclusion, which is a corollary of the first, is that when the Panel makes an order under s 657D it is creating rights that operate for the future.
94 Then there are the factors in s 657A(3)(a) that the Panel must take into account. Having regard to those factors the Panel’s ultimate decision will not involve the application of principles of law to facts as found but will be based on subjective evaluation and value judgment. As I have said, this is characteristic of administrative decision-making. It is the same kind of decision-making that was required of the Panel by the legislation considered in Precision Data Holdings in which the High Court held that the Panel did not exercise judicial power.
95 Finally, and perhaps most importantly, there is a point that is fatal to the argument that the Panel exercises judicial power. Its orders are not on any view “binding and authoritative”. This is not because they are subject to direct attack by judicial review and collateral attack in other proceedings (perhaps not by itself a decisive point). It is because the intervention of a court is required for their enforcement. The enforcement of an order by the Panel is covered by s 657G which provides that if a person contravenes or proposes to engage in conduct that would contravene an order “the Court may make any orders it considers appropriate to secure compliance with the Panel’s order, including (a) one or more remedial orders; and (b) an order directing a person to do, or to refrain from doing, a specified act.” That is, a Panel order requires an independent exercise of judicial power to give effect to the order. And the court may refuse to give a Panel order effect either for (albeit limited) discretionary factors or if it be shown that the Panel committed jurisdictional error.
96 In Wilkinson v Clerical Administrative and Related Employees Superannuation Pty Ltd (1998) 79 FCR 469, 501 Sundberg J said: “A body with power to decide controversies between parties by the determination of rights and duties based upon existing facts and the law does not without more exercise judicial power. In my view Brandy establishes the body must as well have power to enforce its determinations, or there must be provided some other enforcement mechanism which does not involve an independent exercise of judicial power by some other body.” This dissenting opinion is consistent with the decision of the High Court in Breckler. The opinion covers this case.
97 It will be apparent from what I have said that I do not regard s 657F as sufficient to constitute an enforcement mechanism. It is not a mechanism for actually putting the Panel’s orders into effect. In any event, if it matters (and in my view it matters not at all) a maximum penalty of $2750 for the breach of an order of the Panel cannot seriously be regarded as a means of enforcement. With hundreds of millions of dollars at stake, as is often the case with takeovers, such a paltry fine would not even encourage compliance with the Panel’s order, let alone enforce it.
98 In my view, the Panel does not exercise judicial power.
99 For the foregoing reasons I would dismiss the appeal in the judicial review proceeding with costs and allow the appeal in the action where I would set aside the orders made by the judge and declare that: (i) Alinta contravened s 606 when it acquired a relevant interest in the AGL parcel upon entry into the Heads of Agreement; (ii) Alinta and its subsidiary Trewas Pty Ltd contravened s 606 when in August 2006 it acquired an additional approximately 10.5 per cent of the units in AGL; and (iii) Merge Co contravened s 606 when it acquired a relevant interest in the AGL parcel upon entry into the MIA of 1 June 2006 and 22 June 2006. I would refer to the judge the determination of what other relief, if any, should be granted consequent upon those declarations. In my view APL should have its costs of the appeal in the action as well as the costs below.
| I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein. |
Associate:
Dated: 20 April 2007
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| NEW SOUTH WALES DISTRICT REGISTRY | NSD 2123 OF 2006 |
| ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA |
| BETWEEN: | AUSTRALIAN PIPELINE LIMITED (ACN 091 344 704) (IN ITS CAPACITY AS RESPONSIBLE ENTITY OF AUSTRALIAN PIPELINE TRUST (ARSN 091 678 778)) Appellant
|
| AND: | ALINTA LIMITED (ACN 087 857 001) (NOW KNOWN AS ALINTA 2000 LIMITED) First Respondent
TREWAS PTY LIMITED (ACN 120 111 006) Second Respondent
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Third Respondent
ALINTA MERGECO LIMITED (ACN 119 985 590) (NOW KNOWN AS ALINTA LIMITED) Fourth Respondent
THE AUSTRALIAN GAS LIGHT COMPANY (ABN 95052167405 ) Fifth Respondent
|
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| NEW SOUTH WALES DISTRICT REGISTRY | NSD 2079 OF 2006 |
| ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA |
| BETWEEN: | ALINTA 2000 LIMITED (ACN 087 857 001) (FORMERLY KNOWN AS ALINTA LIMITED) First Appellant
TREWAS PTY LIMITED (ACN 120 111 006) Second Appellant
|
| AND: | TAKEOVERS PANEL First Respondent
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Second Respondent
AUSTRALIAN PIPELINE LIMITED (ACN 091 344 704) (IN ITS CAPACITY AS RESPONSIBLE ENTITY FOR THE AUSTRALIAN PIPELINE TRUST (ARSN 091 678 778)) Third Respondent
|
| JUDGES: | FINKELSTEIN, GYLES AND LANDER JJ |
| DATE: | 20 April 2007 |
| PLACE: | adelaide (heard in SYDNEY) |
REASONS FOR JUDGMENT
GYLES AND LANDER JJ:
INTRODUCTION................................................................................................................ [100]
The Transactions................................................................................................................ [104]
APL’s Application to the Takeovers Panel.......................................................................... [145]
Original Panel Decisions..................................................................................................... [147]
The Reviewing Panel’s decision.......................................................................................... [151]
APL commences the declaration proceeding....................................................................... [166]
The primary judge’s reasons for dismissing the declaration proceeding................................. [170]
Alinta and Trewas commence the judicial review proceeding............................................... [181]
The primary judge’s reasons for dismissing the judicial review proceeding............................ [183]
THE APPEALS AND ISSUES ON APPEAL....................................................................... [195]
The issues on appeal in the declaration proceeding.............................................................. [196]
The issues on appeal in the judicial review proceeding......................................................... [200]
THE DECLARATION PROCEEDING APPEAL................................................................. [203]
Did Alinta acquire a relevant interest before 8.00 am or 9.00 am on 26 April 2006?............ [203]
The HOA........................................................................................................................... [229]
Did the HOA terminate on 31 May 2006?.......................................................................... [247]
Merge Co.......................................................................................................................... [256]
The Regulatory Deed.......................................................................................................... [297]
The Relationship Deed........................................................................................................ [307]
The Transaction Implementation Deed................................................................................ [318]
4 August 2006................................................................................................................... [322]
The ASIC Declaration........................................................................................................ [328]
Alinta’s acquisitions between 16 August and 22 August 2006.............................................. [354]
Conclusion on the appeal in the declaration proceeding........................................................ [356]
JUDICIAL REVIEW PROCEEDING APPEAL.................................................................... [362]
Constitutional point............................................................................................................. [363]
Legislative history............................................................................................................... [366]
Precision Data Holdings...................................................................................................... [379]
Current legislative regime.................................................................................................... [385]
Effect of legislative changes................................................................................................. [399]
Conclusions on the constitutional point................................................................................ [418]
Conclusion on the appeal in the judicial review proceeding................................................... [432]
INTRODUCTION
100 The two appeals before this Court are from two separate proceedings both of which were heard and determined by a judge of this Court in a comprehensive and carefully reasoned decision delivered with considerable expedition: Australian Pipeline Limited (ACN 091 344 704) v Alinta Limited (ACN 087 857 001) [2006] FCA 1378.
101 Australian Pipeline Limited (APL) commenced the first proceeding seeking a declaration that the acquisition by the first and second defendants Alinta and Trewas of certain units in the Australian Pipeline Trust (APT) was in contravention of s 606 of the Corporations Act 2001; a declaration that the first defendant contravened s 606 by entering into a Heads of Agreement (HOA) with the fifth defendant The Australian Gas Light Company (AGL) on 26 April 2006; a declaration that the fourth defendant Alinta Mergeco Limited (Merge Co) contravened s 606 by entering into a series of agreements with AGL on 1 June 2006 and 22 June 2006; and consequential relief (the declaration proceeding). That proceeding was dismissed by the primary judge.
102 In the second proceeding the applicants Alinta Limited (Alinta) and Trewas Pty Limited (Trewas) sought judicial review of a decision of the first respondent (Takeovers Panel) to make a declaration of unacceptable circumstances pursuant to s 657A of the Corporations Act 2001 (Cth) (Corporations Act 2001) and orders pursuant to s 657D of the Corporations Act 2001 (the judicial review proceeding). That proceeding was also dismissed by the primary judge.
103 The plaintiff in the declaration proceeding and the applicants in the judicial review proceeding have appealed against the orders made by the primary judge dismissing each of the proceedings.
The Transactions
104 Prior to June 2000 AGL owned gas transmission pipelines. In June 2000 those gas transmission pipeline assets were vested in APT which is a registered managed investment scheme for the purposes of Ch 5C of the Corporations Act 2001. APL is the responsible entity of the trust. The trust’s units are listed for quotation on the Australian Stock Exchange (ASX). By reason of the vesting of those assets in APT, AGL obtained 30% of the units of APT. As at 26 April 2006 APT had 278,895,434 units on issue of which AGL held 83,668,630.
105 In January 1995 the Gas Corporation was formed in Western Australia to own and operate the gas distribution business of the State Energy Commission of Western Australia. On 1 July 2000 Alinta acquired the assets and businesses of the Gas Corporation.
106 On 13 March 2006, AGL announced an off-market takeover for all the ordinary shares in Alinta. As at 20 March 2006, Alinta held approximately 19.9% of the shares in AGL. On that date, in response to the AGL offer, a wholly owned subsidiary of Alinta announced an off-market takeover offer for all the ordinary shares in AGL. That subsidiary may also be referred to as Alinta.
107 On 24 March 2006 Alinta lodged its bidder’s statement in relation to the proposed takeover bid for all its issued shares in AGL. On 31 March 2006 Alinta lodged a supplementary and replacement bidder statement. The offer was to open on 18 April 2006 and close on 31 May 2006. On 18 April 2006 Alinta’s bidder statement in respect of the AGL shares was despatched to the AGL shareholders.
108 Chapter 7 of the Corporations Act 2001 provides for the licensing of persons to hold an Australian CS facility licence (s 824B). ‘CS’ means clearing and settlement. Section 761A provides that a prescribed CS Facility is a ‘licensed CS Facility that is prescribed by Regulations’. ASX Settlement and Transfer Corporation Pty Limited (ASTC) is a prescribed CS facility (reg 7.1.03 of the Corporations Regulations 2001 (Cth) (Corporations Regulations 2001)). ASTC operates the Clearing House Electronic Subregister System (CHESS) which provides an electronic system to settle transactions in shares, such as shares in AGL.
109 Section 822A of the Corporations Act 2001 provides that the operating rules of a licensed CS facility must deal with the matters prescribed by regulations. The legal effect of these operating rules is addressed in s 822B. ASTC has operating rules which deal with takeover acceptances (ASTC Settlement Rules, Rule 14.14).
110 Alinta’s bidder statement provided that if the AGL shareholders’ shares are on a CHESS subregister the shareholder must comply with the ASTC Settlement Rules. In particular, it provided:
‘10.2 CHESS Holdings
If your Acceptance Shares are in a CHESS Holding, you must comply with the ASTC Settlement Rules. To accept this Offer in accordance with those rules, you must either:
(a) instruct your Controlling Participant to initiate acceptance of this Offer under rule 14.14 of the ASTC Settlement Rules or, if you are a Participant, yourself initiate acceptance under that rule so as to be effective before the end of the Offer Period; or
(b) complete and sign the Acceptance Form in accordance with the instructions on it and return the Acceptance Form together with all other documents required by the instructions on it to the address specified on the form. This will authorise Alinta GH to instruct your Controlling Participant (usually your broker) to initiate acceptance of this Offer on your behalf. For return of the Acceptance Form to be an effective acceptance of the Offer, you must ensure it is received by Alinta GH in time for Alinta GH to give instructions to your Controlling Participant, and your Controlling Participant to carry out those instructions, before the end of the Offer Period.’
(Original emphasis.)
111 AGL shareholders could comply with the ASIC Settlement Rules by either instructing the shareholder’s controlling participant (usually the shareholder’s broker) to accept the offer or complete and sign and return the acceptance form themselves.
112 The acceptance form provided:
‘If you hold your AGL Shares in a CHESS holding (see “subregister” above), to accept the Offer you can either:
● Instruct your Controlling Participant directly – normally your stockbroker
or
● Authorise Alinta GH to contact your Controlling Participant on your behalf, which you can do by signing and returning the form. By signing and returning the form you will be deemed to have authorised Alinta GH to contact your Controlling Participant directly via the CHESS system.’
113 The instructions to complete the form included:
‘How to accept the Offer
If your AGL Shares are held in an Issuer Sponsored Holding, simply complete and return this form to the Alinta GH registry so that it is received by no later than 7.00pm (Sydney time) on 31 May 2006, unless the Offer is extended.
If your AGL Shares are in a CHESS holding, you may contact your Controlling Participant directly (normally your stockbroker) with instructions to accept the offer. If you do this, you will need to sign and return this Transfer and Acceptance Form to your Controlling Participant. If you want Alinta GH to contact your Controlling Participant on your behalf via the CHESS system, sign and return this form to the Alinta GH registry so that it is received in sufficient time for your instructions to be carried out by 7.00pm (Sydney time) on 31 May 2006 unless the Offer is extended.
If you sign and return this Transfer and Acceptance Form to the Registry either in respect of an Issuer Sponsored Holding or so that contact may be made with your Controlling Participant on your behalf, you warrant to Alinta GH (and authorise Alinta GH to warrant on your behalf) that you accept the Offer and acknowledge the effect of your acceptance, as set out in clause 11 of the Bidder’s Statement.’
114 Computershare Investor Services Pty Ltd (Computershare) provides registry services to companies listed on the ASX, including Alinta. As such, it provided those services to Alinta in relation to Alinta Group’s takeover offer for AGL. It created daily acceptance summary sheets which indicated the acceptances it received from AGL shareholders for each day. Alinta’s bidder statement provided that signed acceptance forms should be sent to Computershare.
115 On 26 April 2006 Computershare received 77 CHESS Offeror Initiated acceptance forms, 7 CHESS broker initiated acceptances and 50 Issuer Sponsored acceptance forms in response to Alinta’s offer. Those acceptances and forms related to 175,261 shares in AGL. Those acceptance forms were provided by AGL shareholders in accordance with Alinta’s bidder statement by instructing the controlling participant to initiate acceptance or by signing the acceptance form. They were sent to Computershare in accordance with the ASTC Settlement Rules.
116 Those acceptances were processed some time on 26 April 2006. As a result, at the conclusion of processing on 26 April 2006, Alinta held in excess of 20.02% of the issued shares of AGL. The number of shares that were the subject of the acceptances processed on this day represented .04% of AGL’s issued shares. At this time, AGL continued to hold 30% of the units in APT.
117 On 26 April 2006, some time between 8.00 am and 9.00 am (AEST), AGL and Alinta signed the HOA. No-one is able to more precisely identify the time during that hour when the HOA was executed.
118 The HOA evidenced an agreement by AGL and Alinta to allocate assets currently held by AGL and Alinta to each other so that, in the end result, AGL would acquire an interest in Alinta’s energy assets and retain its own energy assets, and Alinta would acquire AGL’s infrastructure assets and would, on the completion of the transaction, own the infrastructure assets and the asset management business of the two companies. Importantly, Alinta would acquire AGL’s 30% holding in APT (clause 4 of the HOA). In relation to that asset the HOA provided that the parties’ obligations were subject to the parties obtaining, if necessary, ASIC relief within three months of the date of the HOA ‘and this HOA does not confer any control over voting rights attaching to those APT securities’ (HOA clause 30(c)).
119 The HOA provided that the parties intended to be immediately legally bound to the performance of the terms (clause 2). The HOA provided, however, that there would be a further agreement described as a Merger Implementation Agreement (MIA) to give effect to the transaction contemplated in the HOA ‘in a form which will be fuller or more precise but not different in effect and the parties agree to use all reasonable endeavours to agree the MIA by the MIA Sunset Date’ (clause 2). The MIA Sunset Date was 31 May 2006 or such later date as the parties agreed in writing (HOA Schedule 1). The HOA provided that the HOA would automatically terminate if the MIA has not been entered into by the MIA Sunset Date (clause 28(b)).
120 The parties agreed to comply with ‘no shop and no talk obligations’ (clause 25). In particular, AGL agreed that it would not participate in any negotiations with any other party except Alinta for that other party to acquire ‘all or a substantial part of AGL’s assets ...’ (Schedule 6).
121 Sections 606(1) and (2) of the Corporations Act 2001 prohibit a person acquiring a relevant interest in issued voting shares in a company or a legal and equitable interest in securities of a body corporate if the company is a listed company and because of the transaction that person’s voting power in the company increases from 20% or below to more than 20% or from a starting point that is above 20% and below 90%.
122 Sections 606(1A) and (2A) allow a person to acquire a relevant interest under one of the exceptions set out in s 611 without contravening s 606(1) and (2).
123 A person can acquire a relevant interest in securities in a number of ways. Relevantly, a person has a relevant interest in securities if they have the power to dispose of, or control the exercise of power to dispose of, the securities (s 608(1)(c) Corporations Act 2001). Where a person’s voting power is above 20% in any body corporate, that person has a relevant interest in any securities of that body corporate (s 608(3) Corporations Act 2001). Securities include interests in a managed investment scheme (s 92 Corporations Act 2001).
124 If a person who has a relevant interest in securities enters into an agreement with another person with respect to those securities, or has given another person an enforceable right in relation to the securities, and the other person would have a relevant interest in the securities if the agreement were performed or the right enforced, the other person is taken to already have a relevant interest in the securities (s 608(8) Corporations Act 2001).
125 An agreement in Ch 6 means a relevant agreement (s 9 Corporations Act 2001). ‘[R]elevant agreement’ is defined in s 9:
‘relevant agreement means an agreement, arrangement or understanding:
(a) whether formal or informal or partly formal and partly informal; and
(b) whether written or oral or partly written and partly oral; and
(c) whether or not having legal or equitable force and whether or not based on legal or equitable rights.’
126 Thus, when Alinta became entitled to more than 20% of AGL’s shares by reason of AGL shareholders accepting its offer, it thereby acquired a relevant interest in securities held by AGL. Consequently, Alinta acquired a relevant interest in AGL’s 30% hold in the units of APT.
127 One of the exceptions which allow a person to acquire a relevant interest is where the acquisition results from the acceptance of an offer under a takeover bid (s 611, Item 1).
128 No MIA was entered into prior to 31 May 2006 but, on 1 June 2006, AGL and Alinta, and also Merge Co and AGL Energy Limited, entered into a MIA (the first MIA) which recited that the HOA had been entered into for the purpose of recording the parties’ agreement to implement ‘the Transaction’ and the MIA had been entered into ‘to record in a fuller and more precise way the terms and conditions upon which (the parties) propose in good faith to implement “the Transaction”’. The first MIA is dated 2 June 2006 but it was accepted by all parties that it was entered on 1 June 2006.
129 The ‘Transaction’ was defined in the MIA:
‘Transaction means the implementation of the Alinta Scheme of Arrangement, the AGL Scheme of Arrangement, the Merge Co Buy Back and the issue of AGL Energy Shares as contemplated by this agreement, the restructure of AGL Energy contemplated by the draft Transaction Implementation Deed which forms Exhibit A and the internal restructure of the WA Retail Business and the sale of a 33% interest in that business to AGL Energy both as contemplated in the HOA.
130 Merge Co was a corporate vehicle which was to be used to effect the transaction. The transaction would leave Alinta enlarged and owned as to 54% by Alinta’s current shareholders and as to 46% by current AGL shareholders. Alinta would retain its infrastructure assets and acquire AGL’s infrastructure assets and asset management business. AGL would retain its energy business and the assets generating that business, and acquire a 33% interest with an option to acquire a 100% interest over five years in Alinta’s Western Australian retail and cogeneration business. AGL shareholders would benefit by obtaining a 46% interest in the enlarged Alinta.
131 The transaction was to be effected by way of schemes of arrangement. The MIA provided that both AGL and Alinta would enter into a scheme of arrangement; in the case of AGL for the transfer of AGL shares to Merge Co and in the case of Alinta for the transfer of Alinta shares to Merge Co. The consideration for the transfer of the AGL shares was the issue by Merge Co of converting shares which were then to be bought back by Merge Co in consideration for the issue of shares in AGL Energy. AGL and Alinta agreed to propose their respective schemes in accordance with the MIA and the respective schemes of arrangement.
132 The MIA executed on 1 June 2006 contemplated that the parties would execute other transactional documents by 21 June 2006. Clause 28.1 provided that the first MIA would automatically terminate if the Relationship Deed, the Regulatory Deed and the Transaction Implementation Deed were not executed by each of the parties to them by 21 June 2006. Those deeds were not executed by that date. Because that did not occur, the parties entered into a further MIA on 22 June 2006 (the second MIA). The second MIA was in exactly the same terms as the MIA which had been entered into on 1 June 2006, save that it had a handwritten note ‘For the purposes of this agreement the date of the agreement is 1 June 2006’ and clause 28.1 provided for automatic termination if the deeds mentioned above were not executed by 22 June 2006. The parties did enter into the Relationship Deed, the Regulatory Deed and the Transaction Implementation Deed on 22 June 2006. It will be necessary in due course to consider a number of terms of the MIA, the Relationship Deed and the Regulatory Deed. It is important, however, that the first MIA was executed three weeks before the Relationship Deed, the Regulatory Deed and the Transaction Implementation Deed, because it is contended that Merge Co contravened s 606 of the Corporations Act 2001 by entering into the first MIA and the second MIA, and separately by Merge Co entering into the Relationship Deed and the Regulatory Deed on 22 June 2006.
133 On 2 June 2006 Alinta wrote to the Company Announcements Office of the ASX in the following terms:
‘By virtue of the Merger Implementation Agreement between, amongst others, Alinta Limited (Alinta) and The Australian Gas Light Company (AGL) dated 1 June 2006 in relation to the proposed merger of the infrastructure businesses of Alinta and AGL, Alinta has become a substantial holder in Australian Pipeline Trust (APA). Attached is a substantial holder notice which provides further information.’
134 It gave a substantial shareholder’s notice to APL in which it advised that if the schemes of arrangement contemplated in the MIA were implemented and at the time of implementation AGL held 30% of the voting power in APT, Alinta would be taken to have a relevant interest in APT by virtue of s 608(3)(a) of the Corporations Act 2001. It also said that it may have a relevant interest at the present time.
135 As at the date of the MIAs, AGL still held 83,668,630 units in APT. A unit in APT had a value in the order of $4.34 as at 22 June 2006 (clause 7(c) of the Regulatory Deed). The total value of these units was therefore in the order of $363,121,850.
136 On 29 June 2006 Alinta’s solicitors applied to the Australian Securities and Investments Commission (ASIC) for relief under s 655A of the Corporations Act 2001 in respect of Alinta’s possible acquisition of a relevant interest in APT as a result of the MIA dated 22 June 2006.
137 Section 655A of the Corporations Act 2001 empowers ASIC to either exempt a person from a provision of Ch 6 of the Corporations Act 2001 or declare that the chapter applies to a person as if specified provisions are omitted, modified or varied, as specified in the declaration (s 655A).
138 On 3 July 2006 ASIC made a declaration (the ASIC Declaration) pursuant to s 655A(1)(b) modifying s 609(7) of the Corporations Act 2001 in relation to a document of the kind of the MIA dated 22 June 2006. The ASIC Declaration was in the following terms:
‘Pursuant to paragraph 655A(1)(b) of the Corporations Act 2001 (“Act”), the Australian Securities and Investments Commission (“ASIC”) declares that Chapter 6 of the Act applies to the person specified in Schedule A in respect of an agreement of the kind referred to in Schedule B and the class of securities specified in Schedule C, as if subsection 609(7) of the Act was omitted and replaced as follows:
“A person does not have a relevant interest in securities merely because of an agreement if the agreement:
(a) is conditional on:
(i) a resolution under item 7 in the table in section 611 being passed; or
(ii) ASIC exempting the acquisition under the agreement from the provisions of this Chapter under section 655A; or
(iii) a scheme of arrangement approved by the Court under Part 5.1 taking effect; and
(b) does not confer any control over, or power to substantially influence, the exercise of a voting right attached to the securities; and
(c) does not restrict disposal of the securities for more than 4 months from the date when the agreement is entered into.
The person acquires a relevant interest in the securities when the condition referred to in paragraph (a) is satisfied.”
Schedule A
Alinta Limited ACN 087 851 001 (“Alinta”)
Schedule B
The Merger Implementation Agreement between Alinta, The Australian Gas Light Company ACN 052 167 405 (“AGL”), AGL Energy Limited ACN 115 061 375 and Alinta Mergeco Limited ACN 119 985 590 dated 22 June 2006 that is conditional on a Part 5.1 scheme of arrangement between AGL and its members taking effect.
Schedule C
Units in Australian Pipeline Trust ARSN 091 678 778’
139 On 17 July 2006 the Alinta Board approved in principle Alinta purchasing up to 10% of APT. On 2 August 2006 the Alinta Board approved financing documents to acquire up to 19.9% of APT.
140 On 4 August 2006 Alinta’s relevant interest in AGL fell below 20% as a result of the exercise of withdrawal rights under s 650E of the Corporations Act 2001 in relation to Alinta’s takeover offer and the rescission of contracts arising as a result of acceptances of Alinta’s takeover offer to shareholders of AGL.
141 On 17 August 2006 Alinta disclosed in two separate news releases that it had on 16 August 2006 acquired through a wholly owned subsidiary of Alinta (Trewas) 11.3 million units in APT increasing its holding to 8.14% in APT.
142 On 18 August 2006 the MIA and the Transaction Implementation Deed were amended by a Merger Implementation Agreement Amending Deed and a Transaction Implementation Amending Deed to which all of the parties to the original MIA and the original Transaction Implementation Deed were parties.
143 On 21 August 2006 Alinta provided APT with a substantial shareholder’s notice disclosing that Trewas had purchased a total of 9.5% of the units in APT in on market purchases. By 22 August 2006, Trewas had acquired 10.25% of APT’s total ordinary units on issue in on market purchases. We shall refer to the acquisitions between 16 August and 22 August 2006 as the ‘further acquisitions’.
144 On 22 August 2006 ASIC provided reasons for its decision to make the ASIC Declaration modifying the effect of s 609(7) of the Corporations Act 2001.
APL’s Application to the Takeovers Panel
145 The Takeovers Panel (the Panel) is constituted by Part 10 of the Australian Securities and Investments Commission Act 2001 (Cth). It consists of not less than five members (s 172(1) Australian Securities and Investments Commission Act 2001), one of whom is the President (s 173 Australian Securities and Investments Commission Act 2001) and all of whom must have knowledge or experience in business; administration of companies; financial markets; financial products and financial services; law; economics or accounting (s 172(4) Australian Securities and Investments Commission Act 2001). Division 2 provides for the manner in which the Panel is to conduct its business. Division 3 deals with Panel proceedings.
146 The Panel is empowered to review an ASIC decision made under s 655A (s 656A Corporations Act 2001). It also may declare circumstances in relation to the affairs of a company to be unacceptable circumstances whether or not those circumstances constitute a contravention of a provision of the Corporations Act 2001 (s 657A Corporations Act 2001). Section 657A(2) limits the circumstances in which the Panel may declare circumstances to be unacceptable and s 657A(3) prescribes the matters to which the Panel must have regard. If the Panel makes a declaration under s 657A(1) it may make an order of the kind prescribed in s 657D(2) (s 657D(1) Corporations Act 2001). A party whose interests are affected by the circumstances said to constitute unacceptable circumstances may apply to the Panel for a declaration under s 657A (s 657C Corporations Act 2001). We shall examine those provisions more closely later in this judgment.
Original Panel Decisions
147 On 21 August 2006 APL applied to the Panel under s 657C of the Corporations Act 2001 in relation to the further acquisitions by Alinta and Trewas between 16 August and 22 August. On 22 August 2006 the Panel made interim orders preventing Alinta or its associates from acquiring further units in APT or dealing with the units acquired by reason of the acquisitions to that point of time.
148 On 31 August 2006 the Panel varied the interim orders of 22 August 2006 so as to allow Alinta to participate in a capital raising by way of book build and institutional placement of units by APT sufficient to maintain, but not exceed, Alinta’s then voting power of 10.25%. The orders provided that the units acquired by Alinta under the bookbuild and institutional placement subject to the restrictions imposed by the interim orders of 22 August 2006. Trewas took up its units pursuant to the bookbuild and institutional placement, which units were issued on 7 September 2006.
149 As at that date, by reason of the bookbuild and institutional placement, the units on issue in APT increased to 321,981,087. Trewas took up 4,221,500 units in APT under the placement pursuant to the variation of the Panel’s interim orders on 31 August 2006, which maintained Alinta’s 10.25% holding in the units in APT. AGL did not participate in the placement and, as a result, its holding in percentage terms reduced from 30% to 26%.
150 In the meantime, on 3 September 2006, the Panel published its finding that Alinta’s further acquisitions of units in APT constituted or gave rise to unacceptable circumstances in relation to the affairs of APT. It did not make a finding that Alinta had contravened s 606 of the Corporations Act 2001. It proposed orders upon which it invited the parties to make submissions. On 7 September 2006 the original Panel made orders including a divestment order.
The Reviewing Panel’s decision
151 On 5 September 2006, pursuant to s 657EA(1), Alinta applied to the Panel for a review of the Panel’s decision published on 3 September 2006 in which the Panel found that the further acquisitions gave rise to unacceptable circumstances.
152 On 7 September 2006 the original Panel stayed its orders until the reviewing Panel had time to consider Alinta’s further application. On 8 September 2006 Alinta lodged an application to the Panel for a review of the original Panel’s final orders including the orders for divestiture of the APT units acquired by Alinta/Trewas after 16 August 2006.
153 The panel which reviewed the original Panel’s decision and orders (the reviewing Panel) was differently constituted to the original Panel. The reviewing Panel was called upon to consider whether Alinta, by entering into the MIA or separately by making the further acquisitions, thereby contravened s 606 of the Act and whether the circumstances of the transactions gave rise to unacceptable circumstances.
154 On 20 September 2006 the reviewing Panel advised that it had made a declaration of unacceptable circumstances in relation to the acquisitions by Trewas of the units in APT subsequent to 16 August 2006. After reciting the background and application the reviewing Panel said:
‘5. The Panel finds that the Acquisitions constituted, or gave rise to, a contravention of section 606 of the Corporations Act.
6. The Panel also finds that the Acquisitions, when considered in the context of the relief granted by ASIC, the forthcoming Schemes and the existing holding of 83,668,630 units in APT by AGL, have, or are likely to have, an effect on the control or potential control of APT.
7. The Panel considers that it is not against the public interest to make a declaration of unacceptable circumstances in relation to the Acquisitions and the affairs of APT.
8. The Panel has considered the desirability of the acquisition of control of units in APT taking place in an efficient, competitive and informed market, and other purposes of the Takeovers Chapters of the Corporations Act as set out in section 602 of the Corporations Act. Having considered these issues, the Panel has decided to make a declaration under 657A of the Corporations Act that the Acquisitions are unacceptable circumstances having regard to the fact that the Acquisitions constituted, or gave rise to, a contravention of section 606 of the Corporations Act, and the effect of the Acquisitions on the control or potential control of APT.’
155 On 24 September 2006 the reviewing Panel made orders:
‘In the matter of Australian Pipeline Trust
Pursuant to section 657D of the Corporations Act 2001 (Act) and pursuant to a declaration of unacceptable circumstances made by the Panel on 20 September 2006, the Takeovers Panel HEREBY ORDERS:
Divestment order
(1) that the Sale Units vest in the Australian Securities and Investments Commission (ASIC) to be held by ASIC on a trust, for ASIC to:
(a) sell the Sale Units; and
(b) subject to any requirement arising under a Tax Law, account to the persons or their nominee who, immediately before the making of this order, were the registered holders of the relevant Sale Units for the proceeds of sale and any distributions on the Sale Units received by ASIC, net of the costs, fees and expenses of the sale and any costs, fees and expenses incurred by ASIC, or which ASIC reasonably incurs, or estimates it will incur, in complying with these orders (even where those costs, fees or expenses are incurred in relation to any earlier unsuccessful attempt to sell the Sale Units). If ASIC considers there to be a reasonable doubt as to whether a requirement has arisen under a Tax Law, ASIC is not required to so account for that proportion of the proceeds relating to the apparent requirement until it has determined whether a requirement has, in fact, arisen;
(2) that Alinta and its agents do all things necessary to give effect to the transfer under order (1) within 4 business days of the date of these Orders;
(3) that ASIC retain an investment bank or licensed stock broker (Appointed Seller) which:
(a) ASIC considers to be appropriately licensed to conduct the sale; and
(b) provides to ASIC a statutory declaration that, having made proper inquiries, the Appointed Seller is not aware of any interest, past, present, or prospective which could conflict with the proper performance of the Appointed Seller’s functions in relation to the disposal of the Sale Units;
(4) that ASIC will instruct the Appointed Seller:
(a) to sell the Sale Units for a cash sum by:
(i) a bookbuild; or
(ii) into a takeover bid (which offers cash as bid consideration (or an equivalent cash amount as one of the alternatives of bid consideration)) for all units in APT that is (at that date) freed from conditions (other than prescribed occurrences) (Unconditional Bid);
(b) to seek to maximise the competition for, and the sale price of, the Sale Units;
(c) that none of the Parties may acquire or buy any of the Sale Units other than pursuant to an acceptance by the Appointed Seller into an Unconditional Bid;
(d) that unless the Appointed Seller sells Sale Units by accepting into an Unconditional Bid, it must obtain from any purchaser of Sale Units, prior to the sale, a statutory declaration or statement in accordance with rule 7.1(c) of the Panel’s Rules for Proceedings that it is not associated with any of the Parties;
(5) without limiting ASIC’s ability to seek further orders, that ASIC seek further orders from the Panel if the Appointed Seller is unable to dispose of all of the Sale Units within 6 weeks from the date of engagement of the Appointed Seller, without, in its reasonable opinion acting as expert, unduly depressing the market price of APT units;
Creep order
(6) that Alinta may not take into account any relevant interest or voting power that Alinta or its associates had, or have had, in the Sale Units, when calculating the voting power referred to in Item 9(b) of section 611, of a person six months before an acquisition exempted under Item 9 of section 611;
Acquiring, disposing and voting restriction orders
(7) Alinta not to:
(a) acquire any relevant interest in any further units in APT;
(b) purchase any units in APT;
(c) dispose of any relevant interest in any Sale Units, other than in a manner approved by the Panel;
(d) enter into, buy, dispose of, terminate or otherwise deal with any cash settled equity swap or other synthetic, economic or derivative transaction connected or relating to any units in APT or the price of units in APT;
(e) exercise any rights attaching to any Sale Unit, including voting any of those Sale Units at a general or extraordinary meeting of APT unitholders;
(f) agree or give any right to require it to do anything referred to in paragraphs (7)(a) to (e) above;
prior to the implementation of the Schemes, or the expiry of the MIA,
(8) that each Party, APT and ASIC have the liberty to apply for further orders in relation to the matters covered by orders (1), (2), (3), (4), (5), (6) and (7);
Nothing in these orders (including order 7) prevents Alinta making a takeover bid for all APT units.’
156 The reviewing Panel published its reasons for making the declaration on 29 September 2006. The reviewing Panel accepted Alinta’s contention that on 26 April it had received acceptances under its takeover bid for AGL so that its holding in AGL increased above 20%. Because Alinta’s increase in voting power in AGL rose above 20%, Alinta was deemed to have acquired a relevant interest in the AGL units in APT under s 608(3)(a). That meant that Alinta had increased its voting power in APT from 0% to 30%, but the acquisition of that 30% relevant interest in APT fell within the exception in Item 14 of s 611.
157 The reviewing Panel did not regard it as necessary to make any decision as to whether Alinta had contravened s 606 by entering into the HOA for three reasons. First, because Alinta advised that the HOA had expired on 31 May 2006 under the terms of the HOA. Secondly, because Alinta had advised that it had acquired voting power of more than 20% in AGL on 26 April 2006 by reason of its takeover. Thirdly, Alinta and AGL entered into the first and second MIAs on 1 and 22 June 2006 respectively and the MIAs were the primary documents operating to give Alinta a relevant interest in the AGL parcel at the time of the Panel’s hearing.
158 The Panel considered whether Alinta had contravened s 606 by entering into the MIAs. It said that at the time of entering into both MIAs Alinta already had a relevant interest in APT by operation of s 608(3)(a) because its voting power in AGL had increased to more than 20% by reason of its acceptances under its takeover bid for AGL. The Panel said that, although the entry into the MIA gave Alinta a relevant interest in the AGL units in APT, the acquisition of that relevant interest in that same parcel of APT units did not increase Alinta’s voting power in APT and therefore there was no contravention of s 606.
159 It found that if Alinta had not acquired a relevant interest in AGL’s units in APT on 26 April 2006 Alinta would have contravened s 606 on 1 June 2006 and 22 June 2006 by entering into the MIAs. That was because the provisions of clause 3.1(g)(ii) of the MIAs gave Alinta both effective and actual power to control the disposal of the AGL parcel. It said that it therefore did not need to examine other provisions of the MIA to determine whether those clauses did or did not give Alinta a relevant interest. However, it did note that it had written to AGL ‘asking how it had treated the AGL parcel [the 30% of the units in APT] since the entry into the MIA. AGL replied that it fell constrained under the MIA not to dispose of assets worth more than $45 million without obtaining Alinta’s consent. AGL advised that, it intended to keep the AGL parcel as an asset of the AGL Infrastructure Business until the Schemes are implemented or the transaction documents have terminated’. For those reasons, if Alinta had not acquired a relevant interest in the AGL parcel on 26 April 2006 Alinta would have breached s 606 on 1 June and again on 22 June by entering into the MIAs.
160 The Panel concluded that when Alinta’s interest in AGL fell below 20% on 4 August it thereby lost the relevant interest it had acquired by reason of its takeover bid which it had been deemed to have had under s 608(3)(a). However, Alinta still held a relevant interest by reason of having entered into the MIA and therefore still had a relevant interest in APT of 30%.
161 Next, it considered whether the MIA was ‘an agreement which satisfied the terms of the modified s 609(7)’ (i.e. by reason of the ASIC Declaration). It found it did not because the MIA did not restrict disposal of the relevant securities for more than four months from the date when the agreement was entered into. It said:
‘51. ... The Panel considered that this was because the modified section 609(7)(c) required that “the agreement” (which gave Alinta the relevant interest in the AGL Parcel, namely, the MIA) not restrict disposal of the relevant securities for more than four months from the date when the agreement was entered into.
52. It is important to note that the ASIC Declaration relates to the MIA only. No other agreement is referred to in the ASIC Declaration and the MIA is the agreement which gives Alinta the relevant interest in the AGL Parcel. In addition, Alinta provided only the 1 June MIA and a side letter of 2 June 2006 to ASIC in making its application for the ASIC Declaration.
53. There is no specific provision in the MIA which sets a date beyond which AGL is free to dispose of assets with a book value of over $45 million (such as the AGL Parcel). Instead, the MIA sets a “Sunset Date”, being the date by which the Schemes must be implemented, and after which, if the Schemes are not implemented AGL’s obligations lapse. If the Schemes are not implemented, the parties’ obligations (and specifically AGL’s obligations not to dispose of assets under section 3.1.(g)(ii) of the MIA) persist, until the Sunset Date. The Sunset Date is 31 December 2006. This is a date more than four months after Alinta and AGL entered into the MIA on 22 June 2006.’
162 It then dealt with Alinta’s acquisitions after 16 August 2006. It found that when Alinta acquired 10.25% of APT after 16 August its voting power increased from 30% to 40.25% which gave rise to a contravention of s 606 of the Corporations Act 2001. The reviewing Panel said:
‘60. Accordingly, when Alinta acquired 10.25% of APT under the Acquisitions, its voting power increased from a starting point of 30% (which it obtained under the MIA, and was never disregarded under the ASIC Declaration) to 40.25% (when it made the Acquisitions). This constituted, or gave rise to, a contravention of section 606 because Alinta acquired (under the Acquisitions) a relevant interest in the 10.25% of voting units in APT and because of that transaction, its voting power in APT increased from a starting point that was above 20% (namely, 30%) to below 90% (namely, 40.25%).
61. On the above basis, the Panel considers that the circumstances (namely, the Acquisitions, in the context in which they occurred) were unacceptable because they constituted or gave rise to a contravention of section 606 (section 657A(2)(b)).’
163 It then considered whether the circumstances amounted to unacceptable circumstances if the ASIC Declaration was effective to relieve Alinta of the relevant interest it acquired under the MIAs and therefore the acquisitions by Alinta after 16 August did not give rise to a contravention of s 606. It concluded in those circumstances the only consequence was that s 657A(2)(b) did not apply to the acquisitions but that the ASIC Declaration did not prevent s 657A(2)(a) from applying.
164 It therefore considered whether the acquisitions amounted to unacceptable circumstances under s 657A(2)(a) because the acquisitions increased the degree of control Alinta had over APT if the schemes of arrangement were approved; increased the likelihood of Alinta controlling APT; and deterred any rival bidders who may have considered bidding for control of APT.
165 It said (at [62]):
‘The Acquisitions (in the context in which they occurred) were unacceptable having regard to the effect of the circumstances on control, or potential control of APT. The manner in which the Acquisitions occurred was not conducive to an efficient, competitive and informed market for the control of securities of APT and all APT unit holders did not have a reasonable and equal opportunity to share in the benefits which may flow from the Acquisitions.’
APL commences the declaration proceeding
166 On 6 September 2006 APL commenced the declaration proceeding. On 9 October 2006 APL filed an amended application in which it sought the following declarations and orders:
‘1. A declaration that the acquisition by the First and Second Defendants [Alinta and Trewas] of 32,820,063 units in Australian Pipeline Trust (“APT”) (the “Units”) during the period 16 August 2006 to 31 August 2006 inclusive was in contravention of section 606 of the Corporations Act.
1A A declaration that the acquisition by the First Defendant [Alinta] of a relevant interest in 83,668,630 units in APT (the “AGL 30% Parcel”) by reason of the entry into the Heads of Agreement between the First Defendant and the Fifth Defendant [AGL] dated 26 April 2006 was in contravention of section 606 of the Corporations Act.
1B A declaration that the acquisition by the Fourth Defendant [Merge Co] of a relevant interest in the AGL 30% Parcel by reason of its entry into:
(a) the Merger Implementation Agreement dated 1 June 2006;
(b) the Merger Implementation Agreement dated 22 June 2006;
(c) the Regulatory Deed dated 22 June 2006;
(d) the Relationship Deed dated 22 June 2006,
was in contravention of section 606 of the Corporations Act.
2. An order that the legal title to and beneficial ownership in:
(a) the Units; and
(b) such number of the AGL 30% Parcel held by the Fifth Defendant as exceed 20% of all issued APT units (“the 6%”),
be vested in the Third Defendant (“ASIC”).
3. A direction that ASIC sell the Units and the 6% by bookbuild, and account to the First, Second and Fifth Defendants respectively for the proceeds of the sale, net of costs, fees and other expenses arising from the sale (including the costs, fees and expenses by ASIC in complying with this direction).
4. A declaration that the First, Second and Fourth Defendants are not entitled to rely on exception 9 of s 611 of the Corporations Act in acquiring directly or through any subsidiary a relevant interest in units of APT until 2 July 2007.
5. Such further or other orders as this Honourable Court thinks fit.
6. Costs.’
167 Alinta answered the claim that it had contravened s 606 by entering into the HOA in a number of ways. First, it said that it could not acquire a relevant interest in the AGL units in APT by entering into the HOA because it held a relevant interest in more than 20% of AGL’s shares prior to entering into the HOA and thereby already held a relevant interest in AGL’s units in APT. It claimed that it had acquired the relevant interest in AGL by AGL’s shareholders accepting the Alinta offer on 26 April 2006. That acquisition of the relevant interest was protected by the exception contained in s 611 Item 1 of the Corporations Act 2001. It therefore contended that even if the HOA gave Alinta a relevant interest in AGL, and therefore the AGL units in APT, there was no increase in its voting power as required for a contravention of s 606. It contended that there was no acquisition of any relevant interest under the HOA because the relevant interest was already in existence. Secondly, it contended that the HOA did not confer upon Alinta any power to control disposal of the AGL units in APT. Thirdly, it contended that, because the HOA came to an end on 31 May 2006, if there was any contravention such contravention expired on the same day and no discretionary relief by way of declaration should be ordered.
168 In relation to the claim for a declaration in paragraph 1B of APL’s application, Merge Co argued that on a true construction of the relevant documents including the MIAs it had not acquired a relevant interest in AGL’s units in APT and thus had not contravened s 606 of the Corporations Act 2001.
169 Alinta argued that it did not contravene s 606 by making the further acquisitions because it did not acquire a relevant interest in AGL’s units in APT prior to making those acquisitions and because if it did the ASIC Declaration was effective to mean that Alinta did not contravene s 606.
The primary judge’s reasons for dismissing the declaration proceeding
170 In relation to the issue as to whether Alinta had acquired a 20% interest in AGL prior to executing the HOA on 26 April 2006, the primary judge said that the evidence did not enable him to be satisfied ‘one way or the other’ whether Alinta had transmitted a valid message in accordance with the ASTC Rules prior to entry into the HOA. However, the primary judge found that Alinta did acquire a relevant interest in more than 20% of AGL because AGL shareholders had delivered acceptance forms to Computershare no later than 8.00 am on 26 April 2006 which gave Alinta the power to dispose of or control the exercise of the shares contained in the acceptance forms. He said that the AGL shareholders by completing and delivering the acceptance forms to Computershare gave Alinta the power to dispose of or control the exercise of the power to dispose of the shares that were the subject of the acceptance form. He concluded that Alinta therefore had a relevant interest in AGL’s units in APT prior to entering into the HOA. It followed, on the primary judge’s reasoning, that Alinta did not therefore contravene s 606 by entering into the HOA even if by entering into the HOA Alinta would have acquired a relevant interest in AGL’s units in APT.
171 The next issue raised for consideration the construction of the HOA. Because the primary judge concluded that Alinta had acquired a relevant interest in AGL and therefore in AGL’s units in APT prior to entering into the HOA, it was not necessary, as he said, for him to reach any conclusion as to whether a relevant interest was obtained under the HOA. However, he addressed the matter and, after discussing a number of clauses in the HOA and their effect, concluded that those provisions did not have the effect that Alinta was in a position to control the exercise of AGL’s power to dispose of its units in APT. He also concluded that AGL had not by reason of the HOA given Alinta an enforceable right in relation to AGL’s units that would give rise to a relevant interest on the part of AGL if the rights conferred by the HOA were enforced.
172 Because the primary judge found that Alinta did not acquire a relevant interest under the HOA, the primary judge did not need to deal with Alinta’s contention that the HOA came to an end on 31 May 2006.
173 The primary judge next addressed APL’s contention that Merge Co had contravened s 606 by entering into the MIA and the transaction documents. The primary judge referred to the relevant clauses of the MIA and, in particular, clause 3.1(g)(ii). He considered the terms of the Transaction Implementation Deed, the Relationship Deed and the Regulatory Deed. In dealing with APL’s contentions in relation to the MIA (which he called the Implementation Agreement):
‘88 I do not consider that the provisions of the Implementation Agreement, upon which APL relies, confer any enforceable rights on Merge Co in relation to units in the Trust. While the effect of clause 27(c) might give Merge Co rights to ensure that it receives part of the value of any distribution from the units in the Trust, it does not follow that that creates an enforceable right in relation to the units themselves. Similar observations apply in relation to the restrictions contained in clause 22 of the Implementation Agreement.’
174 The primary judge concluded that the MIA did not confer any enforceable rights on Merge Co in relation to the units of the trust. He then considered APL’s further argument that Alinta and Merge Co had a relevant interest in AGL’s units in APT because of the terms of the Relationship Deed and the Regulatory Deed. He said at [103]:
‘103 None of the Transaction Instruments requires Alinta or AGL to cause the Trust or APL to do anything. A fortiori, nothing required Merge Co to do anything. The Regulatory Agreement is essentially a mechanical document, which enables the AGL Infrastructure Assets to be defined, once it is clear whether regulatory approvals will be obtained or not. It cannot and does not confer on Merge Co any greater rights than Merge Co derives under the Implementation Agreement. Merge Co has more substantive rights under the Relationship Deed. However, those rights are all commercial and relate to allocation of liability for ongoing litigation, claims and the like.’
175 He concluded that there was no contravention of s 606 by reason of AGL, Alinta, Merge Co, AGL Energy Limited entering into the transaction agreements because no relevant interest was acquired thereby either by Alinta or by Merge Co.
176 He then considered the ASIC Declaration upon which Alinta relied to answer the claim that it contravened s 606 by making the further acquisitions. He recorded APL’s contentions that the ASIC Declaration did not preclude Merge Co contravening s 606 because the ASIC Declaration only applied to Alinta and not to Merge Co; only applied to the MIA; and does not operate retrospectively.
177 He said that because Merge Co had not acquired a relevant interest in AGL’s units in APT by entering into the MIA or the other transaction documents it did not matter that the ASIC Declaration only applied to Alinta. He rejected the contention that the ASIC Declaration only applies to the MIA entered into on 22 June 2006 holding that it applied to an agreement of the kind in Schedule B of the ASIC Declaration. He also rejected APL’s argument that the ASIC Declaration did not operate retrospectively. If it applied he said it applied from 3 July 2006 which would mean that Alinta did not contravene s 606 by making the further acquisitions.
178 He considered APL’s further contentions that the ASIC Declaration was not effective because the MIA was not conditional upon a Part 5.1 scheme of arrangement between AGL and its members taking effect and that the MIA did not restrict the disposal of AGL’s units in APT to a period of four months.
179 He concluded that all the transaction instruments needed to be considered together as giving rise to a single transaction. He found that clauses 3.1(a) and 3.17 of the second MIA constituted an arrangement which was conditional upon a scheme of arrangement approved by the Court taking effect. He said that if the transaction documents were considered together there was no restriction on disposal beyond the Second Court Date which was within the four months prescribed by the ASIC Declaration. He said:
‘123 ... My conclusion is that, at no time during August 2006, was Alinta or Merge Co to be taken to have a relevant interest in AGL’s units in the Trust by reason of any of the Transaction Instruments or by the operation of the Heads of Agreement or the Merger Implementation Agreement dated 1 June 2006. It follows that there was no contravention of s 606 by reason of Alinta acquiring units in the Trust during August 2006.’
180 The primary judge found that neither Alinta nor Merge Co had contravened s 606 in the case of Alinta in entering into the HOA and in the case of Merge Co entering into the MIA or other transaction documents. He also dismissed APL’s claim that Alinta contravened s 606 by making the further acquisitions. If he had been of a different view he would have accepted Alinta’s argument that the ASIC Declaration was effective in respect to the MIA and other transaction documents. He said in that regard:
‘The Commission Declaration applied in respect of an agreement of the kind referred to in Schedule B. It was not limited to the Implementation Agreement dated 22 June 2006. I consider that s 609(7), as modified by the Commission Declaration, was satisfied in relation to any interest in the units in the Trust held by AGL.’
Alinta and Trewas commence the judicial review proceeding
181 On 25 September 2006 Alinta and Trewas commenced the judicial review proceeding under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth). On 10 October 2006 they filed a further amended application seeking an order quashing the decision of the reviewing Panel on 20 September 2006 to make a declaration of unacceptable circumstances and seeking to set aside the orders made by the reviewing Panel on 24 September 2006.
182 In that proceeding, Alinta and Trewas claimed that the conclusion of the Panel that Alinta had engaged in unacceptable circumstances was wrong. They claimed that the Panel misconstrued the MIA; failed to give effect to the ASIC Declaration of 3 July 2006; asked itself the wrong questions in considering the disposal of AGL’s holding in APT under the MIA; asked itself the wrong question in determining whether there had been a breach of s 606 of the Corporations Act 2001; took into account irrelevant matters and failed to take into account relevant matters; and when making the divestiture orders the Panel failed to take into account relevant considerations. They claimed that s 657A and s 657D of the Corporations Act 2001 are unconstitutional because those sections purport to vest the judicial power of the Commonwealth in the Panel.
The primary judge’s reasons for dismissing the judicial review proceeding
183 The primary judge’s conclusions in relation to the declaration proceeding were, of course, relevant to the judicial review proceeding. Those conclusions were at variance with the reviewing Panel’s conclusions in important respects. He found that neither Alinta nor Merge Co acquired a relevant interest by entering into any of the transaction documents. The primary judge would have found that the ASIC Declaration applied to Alinta so that when Alinta’s shareholding in AGL fell below 20% on 4 August and lost the protection of the exemption in s 611 Item 1, it did not thereby hold a relevant interest in AGL’s units in APT by operation of the MIA or other transaction documents.
184 The reviewing Panel, on the other hand, was of the opinion that Alinta did hold a relevant interest as at 4 August 2006 and that the ASIC Declaration did not operate in favour of Alinta because it did not restrict disposal of the AGL parcel to four months. The Panel, therefore, concluded that as Alinta had a relevant interest as at 4 August 2006 the further acquisitions constituted a contravention of s 606 of the Corporations Act 2001. His Honour said the reviewing Panel’s conclusion was erroneous.
185 However, the primary judge rejected Alinta’s argument that because the Panel had erred in that regard its further reasons were flawed. He found that the Panel’s decision that the relevant circumstances amounted to unacceptable circumstances pursuant to s 657A(2)(a) was reached independently of its conclusion that Alinta had contravened s 606. He said that he did not consider that the reviewing Panel’s error in finding that Alinta contravened s 606 impugned the reviewing Panel’s declaration insofar as the declaration was premised on its reasons concerning the effect of the relevant circumstances on control or potential control of APT (s 657A(2)(a)).
186 The primary judge rejected Alinta’s argument that the Panel had erred in concluding that the acquisitions had, or were likely to have, a deterrent effect on the prospects of a rival offer for the trust. In particular, he rejected Alinta’s argument that by proceeding to consider whether the acquisitions were ‘likely’ to have a deterrent effect the Panel had not approached its task in accordance with s 657A(2)(a). He concluded that the Panel had not made any reviewable error concerning the effect of the acquisitions on control or potential control.
187 He said that phrases such as ‘likely to have an effect’ and ‘likely effects’ were not to be read as if they were words appearing in an Act of Parliament. They should be understood in the context of the Panel’s reasons. The Panel had an obligation to consider whether the circumstances had an effect on control or potential control which required the Panel to continue to consider matters into the future. The primary judge held that the Panel satisfactorily identified the circumstances upon which it based its conclusions.
188 Alinta argued that, at the time of the acquisitions there was no certainty that the two schemes would be implemented, or that AGL would still hold its units in APT at the time of the schemes if implemented, or that AGL’s units in APT would still amount to the same percentage at the time of the implementation. Whilst the primary judge agreed with that premise he rejected Alinta’s argument that the Panel should not thereby have proceeded to consider whether the circumstances amounted to unacceptable circumstances. He found that the Panel was correct to asses the likelihood of these matters occurring. He said that the Panel needed to satisfy itself whether potential bidders would be deterred and, to that extent, had to speculate on events occurring. He rejected Alinta’s argument that the Panel was wrong to find that the market would perceive that AGL’s ability to dispose of the APT units was restricted as being a finding open to the Panel with its expertise and experience.
189 The primary judge rejected Alinta’s argument that the Panel failed to take into account relevant matters in determining whether the circumstances amounted to unacceptable circumstances. Whilst he accepted that some of the matters complained of might be relevant, they were not matters, in the primary judge’s opinion, which were mandatory such that the failure to have regard to those matters would amount to a reviewable error.
190 His Honour dismissed Alinta’s complaints concerning the Panel’s decision to make a declaration of unacceptable circumstances. His Honour said that the declaration should stand notwithstanding the erroneous conclusion reached by the Panel concerning Alinta’s contravention of the Corporations Act 2001 by reason of the further acquisitions.
191 The primary judge then considered Alinta’s complaints about the orders made by the Panel and, in particular, the complaint that the reviewing Panel failed to have regard to relevant matters. The primary judge found that none of the matters about which Alinta complained were mandatory considerations. The primary judge concluded that Alinta was seeking to have a merits review of the reviewing Panel’s decision.
192 Because the primary judge had concluded that Alinta had not contravened s 606 of the Corporations Law, it was not necessary for him to consider Alinta’s contentions that the power to make a declaration of unacceptable circumstances and consequential orders based on a contravention of the Corporations Act 2001 were invalid as involving the exercise of judicial power of the Commonwealth.
193 However, he separately considered Alinta’s contention that the powers conferred by s 657A(2)(a) and s 657D of the Corporations Act 2001 are invalid where they do not depend upon a finding of a contravention of the Corporations Act 2001 pursuant to s 657A(2)(b). He rejected Alinta’s contention because he concluded that the Panel declaration made under s 657A did not adjudicate upon a dispute about existing rights or obligations arising from past events or conduct. He found, on the contrary, that the Panel declaration merely constituted a basis for determining what rights and obligations should be created in the future. Thus, he found, s 657A and s 657D were not invalid.
194 For those reasons, he dismissed Alinta’s application for judicial review.
The appeals AND ISSUES ON APPEAL
195 Even though there was a common substratum of facts, the appeals were heard separately, the declaration proceeding appeal being heard first.
The issues on appeal in the declaration proceeding
196 During argument the parties identified the issues on appeal:
(1) Whether the primary judge should have found that s 606 was contravened:
(a) by Alinta by entering into the HOA on 26 April 2006 in that it thereby acquired a relevant interest in the AGL units in APT;
(b) by Merge Co by entering into the first MIA on 1 June 2006, and the second MIA, Relationship Deed and Regulatory Deed on 22 June 2006 in that it thereby acquired a relevant interest in the AGL units in APT;
(c) by Alinta and Trewas by reason of the acquisitions on market of 10.25% of units in APT after 16 August 2006 and before 22 August 2006.
(2) Even if there was a contravention of s 606 by any of the parties, what would be the appropriate relief in proceedings of this kind having regard to:
(a) the ASIC Declaration of 3 July 2006; and
(b) the fact that Alinta obtained a relevant interest on any understanding some time on 26 April 2006 by reason of its takeover bid.
197 The assertion that Alinta contravened s 606 raises for consideration whether Alinta had acquired a relevant interest in AGL’s units in APT on 26 April 2006 by reason of AGL’s shareholders delivering acceptance forms to Alinta on that day. Alinta contended that it had already acquired 20% of the shares in AGL which gave it a relevant interest prior to the signing of the HOA. That argument raises for consideration the construction and application of s 611 Item 1 of the Corporations Act 2001. The other issue under this heading concerns the construction and effect of the HOA.
198 The allegation that Merge Co acquired a relevant interest by entering into the MIAs, the Relationship Deed or the Regulatory Deed involves a consideration of the construction and effect of those documents.
199 The allegation that Alinta and Trewas contravened s 606 raises the same issue as is raised in the judicial review proceeding. That includes the question of the construction and effect of the ASIC Declaration of 3 July 2006.
The issues on appeal in the judicial review proceeding
200 On the appeal, in the judicial review proceeding, Alinta sought and was granted leave to amend its notice of appeal. Alinta identified the issues arising on appeal:
(1) whether in view of the Panel’s error in finding a contravention by Alinta of s 606 the Panel’s reasoning was infected such that the Panel erred in finding the circumstances amounted to unacceptable circumstances;
(2) whether the Panel was required to take into account the fact and significance of the ASIC Declaration in considering whether there were unacceptable circumstances;
(3) whether the Panel erred by having regard to the likely effect of relevant circumstances on the control or potential control of APT; and
(4) whether ss 657A and 657D are invalid because they vest the judicial power of the Commonwealth in the Panel contrary to Ch III of the Constitution.
201 APL acted as the contradictor on this appeal. The Attorney-General for the Commonwealth intervened in respect to the constitutional challenge to s 657A and s 657D and in support of the validity of those sections. The Panel submitted to any order the Court might make save as to the question of costs. The Panel made its own submissions and adopted the submissions of the Attorney-General for the Commonwealth. It provided the Court with a legislative history of the Takeovers Panel and its jurisdiction.
202 APL filed a notice of contention raising three separate grounds for upholding the orders made by the primary judge. It first contended that the primary judge ought to have found that the reviewing Panel was correct in concluding that the second MIA gave Alinta the power to control the exercise of the power of AGL to dispose of the AGL units in APT; that Alinta thereby obtained a relevant interest in the AGL units in APT; that the second MIA did not satisfy the ASIC Declaration in that it did not restrict disposal of the AGL units in APT for more than four months from the date the second MIA was entered into and, as a result thereby, the further acquisitions constituted or gave rise to a contravention by Alinta of s 606(1) of the Corporations Act 2001. Secondly, it was contended that the primary judge ought to have had regard to the evidence of AGL to the reviewing Panel that AGL felt constrained under the second MIA not to dispose of assets worth more than $45 million without obtaining Alinta’s consent and that AGL intended to keep the AGL units in APT until the schemes of arrangement were implemented or the transaction documents terminated, and used that evidence to conclude that the reviewing Panel arrived at a correct conclusion. Thirdly, it was contended that the primary judge ought to have found that the reviewing Panel was correct in declaring that the circumstances involved in the further acquisitions to be unacceptable circumstances under s 657A(2)(b) because they gave rise to a contravention of s 606(1). That third contention, of course, relied upon the acceptance of the first contention.
The declaration proceeding appeal
Did Alinta acquire a relevant interest before 8.00 am or 9.00 am on 26 April 2006?
203 The first matter that needs to be determined is whether the primary judge was correct in finding that Alinta acquired a relevant interest in AGL and thereby AGL’s holding in the units of APT prior to entering into the HOA between 8.00 am and 9.00 am on 26 April 2006. It will be recalled that the primary judge made that finding on the ground that the delivery of acceptance forms to Computershare gave Alinta the power to dispose of or control the exercise of the power to dispose of the AGL shares and thereby Alinta was deemed to have a relevant interest pursuant to s 608(3)(a) of the Act.
204 The onus of establishing that Alinta had not acquired a 20% interest in AGL prior to 8.00 am on 26 April 2006 was upon APL. For it to show a contravention of s 606 of the Corporations Act 2001, it had to show that Alinta acquired a relevant interest in AGL’s units in APT by entering into the HOA. Therefore, it had to show that Alinta did not have an existing relevant interest in AGL’s units in APT because it controlled more than 20% of the shares in AGL at 8.00 am on 26 April 2006.
205 Section 611 of the Corporations Act 2001 sets out a table by which acquisitions of a relevant interest in a company’s voting shares are exempt from the prohibition in s 606(1). Item 1 of the table provides:
‘1. An acquisition that results from the acceptance of an offer under a takeover bid.’
206 Section 653A of the Corporations Act 2001 provides:
‘653A If:
(a) an offer is made under an off market bid for quoted securities; and
(b) regulations made for the purpose of this paragraph set out any requirements for the manner in which the acceptance of the offer, so far as it relates to those securities, must be complied with;
an acceptance of the offer for those securities is effective only if it is made in that way.’
207 Regulation 6.8.01 of the Corporations Regulations 2001 provides:
‘6.8.01For paragraph 653A(b) of the Act, if the operating rules of a prescribed CS facility require an acceptance of an offer to which paragraph 653A(a) applies to be made in a particular way, to the extent that the acceptance relates to the securities in the offer, the acceptance must be made in that way.’
208 A ‘prescribed CS facility’ is not defined in the Corporations Regulations 2001 but is defined in the Corporations Act 2001. The definition in the Corporations Act 2001 may be used for the purpose of the Corporations Regulations (s 13(1)(b) of the Legislative Instruments Act 2003 (Cth)). A ‘prescribed CS facility’ is defined in s 761A of the Corporations Act 2001 to mean a licensed CS facility that is prescribed by regulations made for the purposes of the definition. A ‘licensed CS facility’ means a clearing and settlement facility the operation of which is authorised by an Australian CS facility licence (s 761A Corporations Act 2001). An ‘Australian CS facility licence’ means a licence under s 824B that authorises a person to operate a clearing and settlement facility (s 761A Corporations Act 2001).
209 ‘[O]perating rules’ is defined in s 761A of the Corporations Act 2001:
‘(a) of a clearing and settlement facility, or proposed clearing and settlement facility, means any rules (however described) made by the operator of the facility, or contained in the operator’s constitution, that deal with:
(i) the activities or conduct of the facility; or
(ii) the activities or conduct of persons in relation to the facility;
but does not include any such rules that deal with matters in respect of which licensed CS facilities must have written procedures under regulations made for the purposes of subsection 822A(2); …’
210 The operating rules of a licensed CS facility must deal with the matters prescribed by the Corporations Regulations (s 822A(1) Corporations Act 2001). The Corporations Regulations may also prescribe matters in respect of which a licensed CS facility must have written procedures (s 822A(2) Corporations Act 2001). ASTC is a prescribed CS facility (reg 7.1.03 Corporations Regulations 2001). ASTC has made the ASTC Settlement Rules.
211 Regulation 7.11.24 of the Corporations Regulations 2001 provides that if the ASTC operating rules include provisions determining when a proper ASTC transfer takes effect those provisions have effect for the purpose of Div 4 of Ch 7 of the Corporations Regulations 2001.
212 A proper ASTC transfer is defined in reg 1.0.02 to mean:
‘(a) an ASTC-regulated transfer of a Division 4 financial product is effected:
(i) through the prescribed CS facility operated by the ASTC; and
(ii) in accordance with the operating rules of the ASTC; and
(b) an ASTC-regulated transfer that the ASTC, in accordance with its operating rules, determines:
(i) to comply substantially with the applicable provisions of those operating rules; and
(ii) to be taken to be, and always to have been, a proper ASTC transfer.’
213 The ASTC Rules do provide provisions for determining when a proper ASTC transfer takes effect. In those circumstances, reg 7.11.24 deems those rules to have effect for the purpose of the division.
214 Pursuant to Rule 14.14 of the ASTC Rules, an acceptance could only have occurred if either the controlling participant or the participant bidder accepted the offer by forwarding, in the case of a controlling participant, a valid originating message and, in the case of a participant bidder, a valid message accepting the offer. These were CHESS transactions. The ‘controlling participant’ is defined in the ASTC Rules in relation to a CHESS holding to mean the participant that has the capacity in CHESS to transfer or convert financial products from the holding. In this case, it would be the broker. The ‘participant bidder’ is defined as a participant entitled to receive acceptances of bids. In this case, it would be Alinta. Therefore, it follows in this case that there could only have been an acceptance in relation to this parcel of shares if a valid originating message or a valid message had been sent prior to, at the latest, 9.00am. Pursuant to the ASTC Rules, there can only be a transfer if there has been an electronic message.
215 Mr Farrant was the team leader of the mail room operations of Computershare in Melbourne. His evidence was that Computershare uses a GPO Box address for receipt of mail relating to corporate activity amongst its clients. That box was used for the return of acceptances of Alinta’s takeover offer for AGL. In the ordinary course of business the contents of a GPO Box are usually delivered to Computershare by its agent by 8.00 am each day. He cannot remember any day upon which the mail was delivered later.
216 The evidence of Mr Cain, a Project leader in Computershare, was:
‘8. The CHESS Offeror Initiated acceptances and the Issuer Sponsored acceptances shown on the transaction summary report with a Run date of 26 April 2006 record the number of acceptance forms for Alinta’s takeover offer for AGL and the number of shares the subject of those acceptance forms received by Computershare in the mail or by hand on or before 26 April 2006.’
217 Mr Cain was cross-examined. His evidence was that Alinta, through Computershare, initiated the acceptances in relation to the acceptance forms received by Computershare in the mail or by hand on 26 April 2006. He said that he was not able, by reference to his company’s records, to say whether the forms which gave rise to the initiation by Alinta had been delivered by mail or hand delivery to the office of Computershare. If they had been delivered by hand, it could have been at any time during the course of 26 April 2006. He also admitted that he was not able to say whether the documents which arrived by mail were delivered early in the morning or during the day or late in the afternoon. That evidence may be compared with that of Mr Farrant who was able to say that, in his experience, the mail was invariably delivered by 8.00 am on each day.
218 Mr Cain said that the processing of the takeover acceptances by Computershare on behalf of Alinta took place during 26 April. He said that he was not able to indicate from his own knowledge or from the systems in place whether the acceptances were processed at any particular time on 26 April.
219 The trial judge found that the evidence did not enable him to be satisfied one way or the other as to whether a valid message had been sent to ASTC by or on behalf of Alinta prior to Alinta entering into the HOA. We agree with that finding. The evidence is that valid messages were sent on 26 April but there is no evidence to indicate whether those valid messages were sent before or after 9.00 am on that day. It may be, as Finkelstein J has said, that the odds are that some of the valid messages were sent after 9.00 am and, as a result, Alinta did not have 20% of AGL’s shares at that time. However, with respect, we think that is to engage in speculation. We prefer the finding made by the trial judge; that is, the evidence does not allow the Court to reach the required level of satisfaction one way or the other.
220 APL submitted that it was in Alinta’s power to establish where it was that the electronic messages were sent. In that regard, it relied upon the dictum of Dixon CJ in Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 371. In referring to the absence of evidence adduced by a plaintiff in a negligence claim, he said:
‘But very little might have been enough. For the case is one where the facts can hardly be within the knowledge of the plaintiff and, at all events so far as concerns the care and control of the premises and the precautions taken, must be peculiarly within the knowledge of the defendant: cf. per Isaacs J., Morgan v. Babcock & Wilcox Ltd. (1929) 43 C.L.R. 163 at p. 178 and the cases there cited. But a plaintiff is not relieved of the necessity of offering some evidence of negligence by the fact that the material circumstances are peculiarly within the knowledge of the defendant; all that it means is that slight evidence may be enough unless explained away by the defendant and that the evidence should be weighed according to the power of the party to produce it, in accordance with the often repeated observation of Lord Mansfield in Blatch v. Archer (1774) 1 Cowp. 63, at p. 65 [98 E.R. 969, at p. 970]: cf. Parker v. Paton (1941) 41 S.R. (N.S.W.) 237; 58 W.N. 189; Ex parte Ferguson; Re Alexander (1944) 45 S.R. (N.S.W.) 64; 62 W.N. 15.’
APL also relied upon the dictum of Gleeson CJ, Gummow and Callinan JJ to the same effect in Vetter v Lake Macquarie City Council (2001) 202 CLR 439.
221 But this is not a case of the type to which those cases referred. The evidence relating to the acceptances of the shares on 26 April 2006 was not peculiarly within the knowledge of Alinta. Indeed, Alinta had no greater knowledge than APL. Moreover, APL called all the evidence that it might be thought there was on the matter. In those circumstances, the cases and the principles are not relevant in considering whether APL has discharged its onus.
222 After the primary judge had made the finding to which we have referred, he said:
‘50 A person has a relevant interest in shares if the person has the power to exercise, or control the exercise of, a right to vote attached to the shares, or has power to dispose of, or control the exercise of, a power to dispose of the shares. Power or control includes, under s 608(2), power or control that is indirect and power or control that is, or can be, exercised as a result of, or by means of, an agreement and a power or control that is or can be made subject to restraint or restriction.
51 Notwithstanding that the processing required under the ASTC Operating Rules may not have been completed prior to the entry into of the Heads of Agreement, the terms of the 77 acceptance forms completed on behalf of the respective holders of shares in AGL were such as to give Alinta a relevant interest in all of the shares that were the subject of those acceptances. By completing and delivering the acceptance form to Computershare, Alinta was placed in a position where it had power to dispose of, or control the exercise of, the power to dispose of the shares that were the subject of the acceptance form. It follows that, prior to entering into of the Heads of Agreement on 26 April 2006, Alinta had a relevant interest in the units in the Trust held by AGL. Accordingly, there was no contravention of s 606, even if, by the Heads of Agreement, Alinta would otherwise have acquired a relevant interest in AGL’s units in the Trust.’
223 With respect, we disagree with the primary judge in relation to that conclusion. We think, as APL contended, that the only manner in which Alinta could have accepted the offers was in conformity with the ASTC Rules. That follows, in our opinion, because of the provisions of reg 6.8.01, s 653A and reg 7.11.24. Those provisions indicate that Parliament intended that the exception provided for in s 611, Item 1 would only apply if a person has accepted in accordance with s 653A and reg 7.11.24, and the appropriate ASTC Rules. That conclusion is consistent with Alinta’s bidder statement which required acceptance in compliance with the ASTC Settlement Rules.
224 It follows, therefore, that whilst it has been established that at some time on 26 April 2006 Alinta acquired more than 20% of the shares in AGL by reason of its takeover bid, it has not been established that it did not acquire the 175,261 shares in AGL until after 8.00 am and that it held 20% of the AGL shares prior to 8.00 am or 9.00 am on that day.
225 It is APL’s case that by entering into the HOA Alinta contravened s 606 by moving from the position of a holder of less than 20% of AGL’s shares to a holder of greater than 20% of those shares. The onus therefore lies upon APL to establish that Alinta did not have greater than 20% at the time that the HOA was signed. Counsel for APL accepted that responsibility. It follows, because APL cannot prove what Alinta’s shareholding was at the time the HOA was entered into it cannot establish, notwithstanding the terms of the HOA, that Alinta contravened s 606 by entering into the HOA.
226 We therefore agree with the primary judge’s conclusion on this point, but only for the reason that APL has not discharged the onus cast upon it by s 606(1) of the Corporations Act 2001. We do not with respect agree with the second reason relied upon by the primary judge because we do not think that there can be an acceptance otherwise than in accordance with the statutory and regulatory regime.
227 However, in case we are wrong about that, we shall consider whether the provisions of the HOA would otherwise mean that Alinta acquired a relevant interest by entering into that transaction.
228 We have already referred to the HOA in general terms. It is necessary, however, to identify some provisions with more particularity.
The HOA
229 Putting aside the question which we say APL has failed to establish, Alinta would have contravened s 606 of the Corporations Act 2001 if, by entering into the HOA, it has the power to dispose of or control the exercise of a power to dispose of AGL’s interest in the units in APT (s 608(1)(c) Corporations Act 2001). It would also have a relevant interest in those securities if AGL had in the HOA given Alinta an enforceable right in relation to the securities (s 608(8) Corporations Act 2001). In both cases it would have thereby acquired a relevant interest in contravention of s 606.
230 The parties to the HOA were AGL and Alinta. By clause 2 of the HOA, AGL and Alinta agreed to be immediately legally bound to the performance of the terms of the HOA although they agreed ‘that those terms will be restated in the MIA and other relevant transaction documents to give effect to the Transaction (Transaction Documents) in a form which will be fuller or more precise but not different in effect ...’.
231 The HOA set out the structural steps which the parties agreed upon to implement the transaction (HOA Schedule 12). Essentially, a company (Merge Co) would be established with a board of directors comprising the CEOs of AGL and Alinta and two nominees of each of AGL and Alinta. AGL and Alinta would each enter into separate Schemes of Arrangement. Merge Co would then be involved in a further separate Scheme of Arrangement by which Merge Co would acquire the entire issued capital of AGL and the entire issued share capital of Alinta. The AGL Scheme of Arrangement and the Alinta Scheme of Arrangement were independent of each other but conditional on each other’s schemes being implemented. The Merge Co Scheme of Arrangement was conditional upon both the AGL Scheme of Arrangement and the Alinta Scheme of Arrangement being implemented. The HOA provided for a sequence of events which is unimportant for present purposes.
232 Clause 4 provides that following the implementation of the Alinta Scheme of Arrangement Alinta’s assets ‘will include 30% interest in APT’. The assets which Alinta would hold following the Alinta Scheme of Arrangement were together referred to as the ‘Alinta Scheme Assets’. Clause 5 valued the Alinta Scheme Assets at $6.45 billion. The parties acknowledged that the Alinta Scheme Assets value was accounted for in the Net Merger Value (HOA clause 5). Schedule 9 of the HOA provided a valuation of the units in APT at market price. The units were valued at $4.34 and the total holding at $363 million.
233 Clause 7 of the HOA provides that, at completion, AGL would hold 33% interest in the WA Retail Business. The WA Retail Business assets would comprise Alinta Energy Sales and WA Cogeneration and cogeneration development rights (HOA clause 6). Like the Alinta Scheme Assets, it was agreed that that 33% interest was accounted for in the Net Merger Value. Alinta otherwise granted AGL call options in relation to the remaining WA Retail Business and other assets which could be exercised in accordance with the HOA.
234 The HOA contemplates a division of AGL’s and Alinta’s assets between the two companies through the medium of Merge Co. It further contemplates that the Alinta Scheme Assets will vest in Alinta following upon the completion of the transaction. As previously observed, the HOA contemplates that further documentation will be entered into to effect the transaction.
235 Clause 16 provides that AGL and Alinta will work together in good faith to determine the most efficient structure to effect the implementation of the transactions.
236 Clause 21 provides:
‘21 Alinta Scheme Assets
Alinta is not permitted to dispose of, or grant any right in, over or in respect of the Alinta Scheme Assets in the period from Completion to the First Anniversary.
This clause 21 does not apply to:
(a) Alinta disposing of Gas Valpo; or
(b) Alinta granting any charge, mortgage or other security interest in respect of the Alinta Scheme Assets to a lender.’
237 As already observed, the Alinta Scheme Assets included AGL’s 30% interest in APT. ‘Completion’ is defined to mean the completion of the transaction. ‘First Anniversary’ means the day which is one year after completion. The HOA contemplates, therefore, that Alinta will retain AGL’s 30% interest in APT at least for one year following upon the implementation of the transaction.
238 The parties agreed on no shop and no talk obligations. Schedule 6 of the HOA regulates AGL’s obligations in that regard. Paragraph (a) of Schedule 6 provides:
‘(a) Subject to paragraph (c), during the No-Shop Period, AGL must ensure that it and its employees, officers and advisers do not directly or indirectly solicit, encourage (including by way of providing information concerning AGL to any person), initiate or participate in any negotiations or discussions, or communicate any intention to do any of these things, with respect to any expression of interest, offer or proposal by any person other than Alinta to:
(i) (whether directly or indirectly) acquire or become the holder (whether by share purchase, scheme, capital reconstruction, purchase of assets, tender offer or otherwise) of, or otherwise have an economic interest in:
(A) all or a substantial part of AGL’s assets or businesses; or ...’
239 At the time the HOA was executed AGL’s assets, of course, included its 30% interest in the units in APT. They were a substantial part of AGL’s assets. Indeed, at or about this time, AGL held units in APT with a value of $363 million (Schedule 9 of the HOA).
240 Clause 30(c) provides:
‘(c) The parties’ obligations in relation to AGL’s securities in APT are subject to the parties obtaining, if necessary, ASIC relief within three months after the date of this HOA and this HOA does not confer any control over voting rights attaching to those APT securities.’
241 That clause, of course, will not operate in its terms if, in fact, the HOA does confer control over voting rights attaching to AGL’s securities in APT. In any event, clause 30(c) only addresses the circumstances where a relevant interest is acquired pursuant to s 608(8) and does not address a relevant interest which may be acquired pursuant to s 608(1)(c).
242 In our opinion, the HOA assumes that at the time of the completion of the MIA, which is contemplated in clause 2, Alinta will acquire AGL’s 30% interest in the units in APT. Both clause 16 and Schedule 6 oblige AGL to preserve those assets so that, in due course, they will become part of the Alinta Scheme Assets. Clause 21 of the HOA contemplates that those units will be held by Alinta for at least one year after completion of the transaction.
243 We are of the opinion that the HOA does give Alinta the power to control the exercise of AGL’s power to dispose of its securities in APT. The whole purpose of the HOA is to ensure that AGL’s 30% interest in APT, amongst other assets, eventually becomes vested in Alinta. Alinta could take steps to ensure that AGL did not dispose of that interest pending the completion of the transaction. Section 608(2) provides that power or control includes power or control that is indirect and can be exercised as a result of an agreement, whether the agreement is enforceable or not. In our opinion, there was an agreement, being the HOA, which empowered Alinta to control the exercise of AGL’s power to dispose of its 30% interest in the units in APT. We think the power is direct but, if it is not direct, it is certainly indirect within the meaning of s 608(2)(a).
244 Moreover, we are of the opinion that Alinta had a relevant interest in AGL’s units in APT because AGL had a relevant interest in those securities; AGL had entered into an agreement with Alinta with respect to the securities; and AGL had given Alinta an enforceable right in relation to those securities (s 608(8) Corporations Act 2001).
245 Notwithstanding it was to be overtaken by the MIA, the HOA gave Alinta an enforceable right in relation to AGL’s units in APT. Alinta could have prevented AGL disposing of those securities relying on the provisions of the HOA mentioned above.
246 In those circumstances, if we are wrong about our finding that APL failed to prove that Alinta had less than 20% of the shares in AGL as at 8.00 am or 9.00 am on 26 April 2006 then, in our opinion, Alinta contravened s 606 by entering into the HOA. In that regard we respectfully disagree with the primary judge.
Did the HOA terminate on 31 May 2006?
247 Alinta contended that the HOA terminated because no MIA had been entered into by 31 May 2006. It was contended therefore that, if any relevant interest was acquired by Alinta entering into the HOA, Alinta ceased to have that relevant interest on 31 May 2006 because the HOA terminated on that date. It was contended that was a relevant matter for two reasons. First, in relation to the subsequent acquisitions in August 2006. Secondly, in relation to any relief which would be granted in the declaration proceeding.
248 Clause 28(b) of the HOA provided:
‘(b) This HOA will automatically terminate if the MIA has not been entered into by the MIA Sunset Date.’
The MIA Sunset Date was defined in the dictionary in Schedule 1 as meaning 31 May 2006 or such later date as the parties may agree in writing.
249 There is no evidence that the parties agreed in writing to extend that date. The first MIA was not entered into until 1 June 2006. Alinta contended that because the MIA was not entered into until 1 June 2006 the HOA came to an end by reason of clause 28(b). The parties to a written agreement can always agree upon a variation to it, absent any requirement for writing.
250 Whilst, as we have said, there does not appear to be any evidence that the parties expressly agreed to extend the date when the HOA would terminate, it can be safely concluded that the parties intended that the HOA would continue to bind the parties until the anticipated substantive instruments became effective. In a media release on 1 June 2006, AGL and Alinta said:
‘The Australian Gas Light Company (AGL) and Alinta Limited (Alinta) today signed the Merger Implementation Agreement (MIA) reached between the parties. The MIA formalises the binding Heads of Agreement signed on April 26, 2006 agreeing to merge AGL’s and Alinta’s respective infrastructure businesses.’
251 The MIAs include a clause described as ‘Background’. It provides:
‘A AGL and Alinta entered into the HOA for the purpose of recording their agreement to implement the Transaction.
B Merge Co, AGL and Alinta have entered into this agreement to record in a fuller and more precise way the terms and conditions upon which they propose in good faith to implement the Transaction.’
252 In our opinion, both the media release and the ‘Background’ provide evidence that the parties objectively intended that the HOA would continue to bind the parties, notwithstanding that the first MIA was not entered into until 1 June.
253 Clause 33.10(b) of the MIA is also relevant. It provides that the MIA will prevail to the extent of any inconsistency with the HOA. If the parties had intended that the HOA would terminate on 31 May 2006 there would have been no need to have included such a clause. There are two other relevant matters which, in our opinion, indicate that the parties intended to continue to be bound by the HOA. The first MIA was entered into on 1 June 2006. It provided that the parties would not only comply with the terms of the MIA but also the terms of the Transaction Implementation Deed (MIA clause 2) which was defined to mean a deed to be entered into by the parties in the form of the draft deed exhibited to the parties at the time of the signing of the agreement and marked ‘Exhibit A’. Clause 16 required the parties to execute the Regulatory Deed at the time required by the Transaction Implementation Deed. The MIA contemplated another transaction document, apart from the Transaction Implementation Deed and the Regulatory Deed, being the Relationship Deed (Schedule 1). In fact, none of those deeds were entered into on or about 1 June 2006. They were only entered into at the time of the execution of the second MIA on 22 June 2006. It is probable, in our opinion, that the parties entered into the MIA on 1 June 2006 because of the MIA Sunset Date in the HOA and even though the parties were not ready to enter into the other transaction documents. We think the conduct of the parties in that regard further evidences an objective intention to continue to be bound by the HOA.
254 Overall the parties at all times acted consistently with the belief that they were bound by the HOA until they entered into an effective MIA. Evidence of that kind is admissible to determine whether or not the term of a contract has been extended by agreement (cf. Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 per Heydon JA at 176).
255 For all of those reasons, we therefore reject Alinta’s argument that the HOA terminated on 31 May 2006. We are of the opinion that the parties intended the HOA to continue to bind the parties at least until it was effectively superseded when all of the necessary documents came into effect on 22 June 2006.
Merge Co
256 Next it was claimed that the primary judge should have held that Merge Co contravened s 606 by entering into the first MIA on 1 June 2006 and by entering into the second MIA, and the Relationship Deed and the Regulatory Deed on 22 June 2006, and by virtue of those agreements acquiring a relevant interest in AGL’s 30% of the units in APT.
257 Whilst there is no claim that Alinta contravened s 606 by entering into the MIAs, the Regulatory Deed and the Relationship Deed, the question whether it acquired and held the relevant interests arises in relation to the lawfulness of the further acquisitions on market between 16 and 22 August.
258 APL contended that Merge Co contravened s 606 of the Corporations Act 2001 in two ways. First, in entering into the MIA and the Relationship Deed and the Regulatory Deed, Merge Co acquired a relevant interest in AGL’s units in APT because it had the power to dispose of or control the exercise of a power to dispose of AGL’s units in APT (s 608(1)(c) Corporations Act 2001). In that regard, it also relied upon s 608(2)(b) which provides that power or control includes power or control that can be exercised by means of an agreement, whether or not that agreement is enforceable. It also relied upon the extended meaning of ‘agreement’ in s 9 and ‘relevant agreement’ also in s 9 of the Corporations Act 2001.
259 Secondly, it was contended that Merge Co also acquired a relevant interest in AGL’s units in APT because, by entering into the MIA and the Relationship Deed and the Regulatory Deed, it was given an enforceable right in relation to securities in which AGL had a relevant interest (s 608(8) Corporations Act 2001). If Merge Co acquired any relevant interest in AGL’s units in APT, logically it must have acquired that relevant interest when it entered into the first MIA. When it entered into the second MIA any relevant interest it already had would have been maintained. It follows, therefore, if Merge Co had acquired a relevant interest in AGL’s units in APT by entering into the first MIA it could never acquire the same relevant interest by entering into the Relationship Deed and Regulatory Deed on 22 June 2006. Whatever the effect of those deeds, they could only have maintained the existing relevant interest. Of course, if Merge Co did not acquire a relevant interest in AGL’s units in APT by entering into the first MIA it is possible that it could have acquired a relevant interest in that parcel by entering into the Relationship Deed or the Regulatory Deed. In our opinion, it acquired the relevant interest on 1 June 2006 when it entered into the first MIA which would make the contravention of s 606 then complete.
260 The first MIA entered into on 1 June 2006 is in the same terms as the second MIA of 22 June 2006 save for the handwritten note. It is only necessary to address the second MIA which was entered into on 22 June 2006 and the Relationship Deed and Regulatory Deed which were entered into on the same day. It is clear enough that the parties intended that the second MIA of 22 June 2006 would be the governing agreement. It is likely, as we have said, that the first MIA was entered into when it was because of the MIA Sunset Date in the HOA.
261 The parties to the MIA were Merge Co, AGL, Alinta and AGL Energy Limited. AGL Energy Limited’s participation does not need to be explained. Like Merge Co, it was a vehicle to effect the transaction.
262 The MIA provided for conditions precedent and, in particular, conditions precedent for the AGL Scheme (which is defined in clause 5). Clause 3.1(a) provides:
‘(a) Schemes Effective: That the AGL Scheme and the Alinta Scheme become Effective by the Sunset Date.’
263 The Sunset Date is defined to be 31 December 2006 or such later date agreed by AGL and Alinta in writing. That clause needs to be examined later in relation to the effect of the ASIC Declaration. The more relevant clause, for the purpose of considering whether Merge Co contravened s 606 by entering into the MIA, is clause 3.1(g)(ii).
264 Clause 3.1(g)(ii) of the MIA provides:
‘3.1 Conditions precedent for AGL Scheme
The obligations of AGL and Merge Co to implement the AGL Scheme are subject to the satisfaction of each of the following conditions precedent (which are subject to clause 3.3) to the extent and in the manner set out in clauses 3.5 and 3.6:
...
(g) No material acquisitions or Disposals: That except for any AGL Approved Matter, none of the following events occurs or has occurred during the period from 26 April 2006 to 8.00 a.m. on the Second Court Date in relation to the AGL Infrastructure Businesses without Alinta’s prior written consent (such consent not to be unreasonably withheld or delayed):
...
(ii) except where ancillary to a transaction which is permitted under paragraph (i), AGL or any Subsidiary of AGL Disposes of, makes an irrevocable offer to Dispose of, agrees to Dispose of, or comes under an obligation to Dispose of one or more companies, businesses or assets (or an interest in one or more companies, businesses or assets), for an amount, or whose book value (as recorded in AGL’s balance sheet as at 31 December 2005) is in aggregate, greater than $45 million or makes an announcement in relation to any such Disposal.’
265 The ‘Second Court Date’ is defined to mean ‘the first day of hearing of an application made to the Court for orders pursuant to s 411(4)(b) and s 411(6) of the Corporations Act approving the Schemes, as the case may be’. Section 411 deals with the manner in which an arrangement may be effected. In particular, s 411(4)(b) and s 411(6) speak to the necessity of obtaining Court approval.
266 The effect of clause 3.1(g)(ii) is to prohibit AGL or its subsidiaries disposing of businesses or assets which have a book value in aggregate greater than $45 million or make an announcement in relation to any such disposal.
267 The ‘AGL Infrastructure Assets’ are defined in Schedule 1 of the MIA and mean all of the assets of AGL other than the AGL Energy Assets and include a number of assets, including AGL’s ‘83,668,630 units in APT held as at the date of this agreement together with any additional units in APT issued to AGL under APT’s dividend reinvestment plan in respect of APT’s distribution for the period ended 30 June 2006’. We have already noted that those units had a market value of $363 million.
268 Clause 3.1(g)(ii) was subject to further agreement in clause 3.7(b):
‘(b) Alinta’s benefit: Alinta alone has the benefit of the conditions precedent in clauses 3.1(f), (g), (i), (k) and (m) and any breach or non-fulfilment of such conditions may be relied upon only by Alinta which may at any time and from time to time in its sole and absolute discretion waive the breach or non-fulfilment.’
269 It was contended on behalf of Merge Co that this clause showed that Merge Co obtained no benefit from the conditions precedent and, in particular, the condition precedent in clause 3.1(g)(ii). That might go to enforceability of the condition precedent but overlooks the provisions of s 608(1)(c) which does not require for its operation in any particular instance an enforceable agreement (s 608(2)(b)(ii) Corporations Act 2001).
270 Clause 3.9 of the MIA is a best endeavours clause which provides:
‘3.9 Best endeavours
To the extent within their control and subject to the terms of this agreement, each of AGL and Alinta agrees to use its best endeavours to implement the AGL Scheme and the Alinta Scheme as soon as practicable and, in particular, to procure that each of the conditions precedent in clauses 3.1 and 3.2 (as the case may be) is satisfied as soon as practicable after the date of this agreement including negotiating in good faith and using best endeavours to agree the terms of the Relationship Deed, Regulatory Deed and Transaction Implementation Deed as soon as practicable (and in any event by no later than 21 June 2006). To the extent that AGL has any rights which it may exercise to procure the satisfaction of a condition precedent in clause 3.1 insofar as it ay concern APT or Actew AGL, AGL will (subject to the obligations of any nominee directors to comply with their fiduciary duties) exercise those rights to ensure its compliance with this clause 3.9. The parties will provide to each other in a timely manner such information as reasonably requested to enable them to negotiate these documents.’
271 It was put that the best endeavours clause did not bind Merge Co to do anything in relation to the AGL Scheme or the Alinta Scheme or the condition precedent. That is hardly surprising because Merge Co was the vehicle within which the scheme was to proceed.
272 APL relied upon clause 17 which provides:
‘17 AGL Ordinary Course of Business
During the period commenced on 26 April 2006 to the Transaction Implementation Date, AGL agrees with Alinta that it will, will ensure that each of its relevant Subsidiaries will, and will use its best endeavours to ensure (to the extent that it is able, and subject to any nominee directors’ obligations to comply with their fiduciary duties) that ActewAGL will (unless Alinta otherwise approves by providing its prior written consent) carry on the AGL Infrastructure Businesses in the ordinary course of business consistent with the business practices of the AGL Group and ActewAGL respectively and not otherwise (except for any AGL Agreed Matter), including:
...
(f) maintain the businesses and assets which comprise the AGL Infrastructure Assets;’
273 We have already referred to the definition of AGL Infrastructure Assets which includes AGL’s units in APT.
274 The primary judge was of the opinion that clause 17(f) does not specifically require AGL to maintain ownership of its units in the trust. He said that the clause simply requires AGL to maintain the businesses and assets that comprise the AGL Infrastructure Assets. He was of the opinion that the reference to maintenance and keeping up of those businesses and assets is as infrastructure assets.
275 We respectfully disagree with his Honour’s construction of clause 17. In our opinion, clause 17(f) requires AGL to retain the businesses and assets which are comprised within the AGL Infrastructure Assets until such time as the transaction is completed. That construction, in our opinion, is consistent with the way in which the transaction was structured. As we have said, the transaction contemplated from the outset a division of assets between AGL and Alinta so that, in the end result, Alinta held the infrastructure assets of the two companies. One of the major infrastructure assets was AGL’s units in APT. When clause 17(f) speaks of maintaining the assets, in our opinion, it means to keep the assets in the sense of retaining the assets so that the transaction may be effected. If it were otherwise and AGL were entitled to sell the units in APT, then the Alinta Scheme Assets would be reduced by the value of the units sold without any corresponding benefit to Alinta. No cash was to change hands so, if AGL sold the AGL Infrastructure Assets, Alinta would be disadvantaged to the extent of the reduction in value.
276 That construction is also consistent with the provisions of clause 27(c) which specifically addresses the AGL Infrastructure Assets. Clause 27(c) provides:
‘(c) AGL will ensure that it participates in APT’s dividend reinvestment plan in respect of the distribution for the period to Completion to a sufficient extent so as to maintain its unit holding in APT at 30%.’
277 AGL could not participate in the APT’s dividend reinvestment plan to the extent required by clause 27(c) unless it continued to hold its 30% interest in the units in APT. Clause 27(c) assumes that those assets will be maintained and, that is, retained. The same assumption was made in Schedule 2 which provides that the Net Merger Value ‘will be increased by the amount of dividend reinvested in APT securities under the APT dividend reinvestment plan in respect of the period to completion’.
278 There is another reason why clause 17(f) ought to be understood in the way in which we have understood it. Clause 17 had a rider to it which provides:
‘The parties agree and acknowledge that:
● subject to clause 17(c), nothing in this clause limits or regulates the way that AGL conducts the AGL Energy Business, provided that there is no material adverse impact on the AGL Infrastructure Businesses; and
● an action which is permitted under clause 3.1(g) will not constitute a breach of this clause 17.’
279 In our opinion, the second bullet point indicates that the parties intended that AGL would maintain the AGL Infrastructure Assets by retaining those assets unless it were permitted under clause 3(g)(ii) to sell part of those assets. In that regard, because of the provisions of clause 3(g)(ii), it could sell part of the business or the assets but not exceeding the business’s assets with a book value of more than $45 million.
280 Clause 22 is a No shop/No talk clause which provides in clause 22.1 (no shop) that the parties must not solicit, invite, facilitate, encourage or initiate any inquiries with a view to obtaining a proposal from any person in relation to a competing transaction. Clause 22.2 is a no talk clause which provides that the parties must not procure, enter into, continue, or participate in negotiations or discussions regarding a competing transaction. ‘Competing transaction’ is defined in relation to AGL as:
‘... a transaction, which if completed, would mean that a person other than Alinta or a Related Body Corporate of Alinta would:
(i) acquire a relevant interest in or become the holder of more than 5% of AGL Shares or the holder of a substantial part or a material part of the business, property or assets of AGL or any of its subsidiaries;
(ii) acquire control of AGL, within the meaning of section 50AA of the Corporations Act;
(iii) otherwise acquire or merge with AGL (by purchase, merger, amalgamation, scheme of arrangement, dual listed structure, business combination, liquidation, dissolution, recapitalisation, takeover bid or otherwise).’
281 The intention of clause 22 is to prevent the parties, and most relevantly AGL, from initiating any inquiries or entering into any negotiations by which some other party, apart from Alinta, would acquire, relevantly, a substantial part or a material part of AGL’s assets. In our opinion, this is a further indication of the fetter which was imposed upon AGL by the MIA.
282 Clause 27(a) of the MIA picks up and expands on clause 21 of the HOA. It provides:
(a) Subject to paragraph (b), Merge Co must not, and must procure that its Subsidiaries do not, Dispose of, or grant any right in, over or in respect of the AGL Infrastructure Assets in the period from Completion to the date which is one year after Completion.’
283 ‘Completion’ is defined to mean ‘completion of the transaction on the Transaction Implementation Date’. The ‘Transaction Implementation Date’ is defined to mean ‘10 Business Days after the AGL Scheme Effective Date and the Alinta Scheme Effective Date (which will be the same day) or such other date as agreed by the parties’. The AGL Scheme Effective Date is the date upon which the AGL Scheme becomes effective (Schedule 1). In our opinion, clause 27(a) is further evidence of the intent of the parties that the AGL Infrastructure Assets will be retained. An obligation is imposed upon Merge Co by clause 27(a) not to dispose of the AGL Infrastructure Assets until a year after the transaction is completed. That obligation could not be imposed unless it were assumed that the AGL Infrastructure Assets would be intact for the benefit of Alinta on the completion of the transaction.
284 Alinta and therefore Merge Co’s obligations to implement the AGL Scheme was subject to the condition precedent in clause 3.1(g)(ii). That condition precedent prohibited AGL from dealing with AGL’s 30% interest in the units in APT. As already noted, AGL’s 30% interest in APT was worth considerably more than the $45 million referred to in clause 3.1(g)(ii). Clause 3.1(g)(ii) prohibited AGL from disposing of those units for the period between 26 April 2006 and the Second Court Date. In our opinion, clause 3.1(g)(ii) empowers Merge Co to control the disposal by AGL of its units in APT.
285 APL also relied upon clause 3.9 as evidence of control by Merge Co of the exercise by AGL of the power to dispose of the securities. We do not agree that clause 3.9 assists APL. Clause 3.9 does not oblige Merge Co to do anything in relation to either the AGL Scheme or the Alinta Scheme.
286 Clause 17, on the other hand, is further evidence of AGL’s submission to the control of Alinta over the disposal of its units in APT.
287 Clause 22 applies to AGL and is for the benefit not only of Alinta but also Merge Co. Clause 22 evidences, in our opinion, the submission by AGL to Merge Co’s power to control the exercise of AGL’s power to dispose of the units in APT. By clause 22, AGL agreed that it would not allow any party, other than Alinta or a related body corporate, to acquire a substantial part of the assets of AGL. AGL’s 30% interest in the units in APT was a substantial or material part of the assets of AGL.
288 Clause 27 of the MIA is in similar terms to clause 21 of the HOA. It is contemplated in clause 27 that Merge Co will obtain the AGL Infrastructure Assets which, of course, includes AGL’s 30% interest in the units in APT and will hold those units for a period of one year from the transaction implementation date. Clause 27(c) also demonstrates the control which is given to Merge Co over AGL’s power to dispose of its securities in APT. As we have already said, unless AGL retains its 30% interest in APT it could not participate to the extent required in APT’s dividend reinvestment plan.
289 Clause 28 provides for termination and the right by any party to terminate. Clause 28.1 addresses the circumstances in which AGL or Alinta were entitled to terminate the agreement. Clause 28.2 provides that Merge Co will not have any right to terminate the agreement. We do not think that because Merge Co had no right to terminate the agreement it can be said that it did not acquire a relevant interest. The relevant interest, at least under s 608(1)(c), arises because Merge Co acquired by an agreement which may or may not have been enforceable at the instigation of Merge Co a power to control AGL’s disposal of its securities in APT.
290 For those reasons, we are satisfied that the MIA, when read as a whole and when read by reference to the specific clauses to which we have referred, does give Merge Co a relevant interest in the exercise by AGL of its power to dispose of its units in APT. Thus, in our opinion, by entering into the MIA, Merge Co contravened s 606(1) of the Corporations Act 2001 by reason of the provisions in s 608(1)(c).
291 For completeness, we should say it is also our opinion that Merge Co has also contravened s 606 by acquiring a relevant interest pursuant to s 608(8). AGL had a relevant interest in issued securities (the units in APT). It entered into the MIA with Alinta and Merge Co. The MIA gave Merge Co an enforceable right in relation to the securities which thereby gave Merge Co a relevant interest in the securities if the agreement were performed or the right enforced. In those circumstances, s 608(8) of the Corporations Act 2001 deems Merge Co to ‘already’ have taken a relevant interest in the securities.
292 We accept APL’s argument that, by entering into the MIA, Merge Co therefore acquired a relevant interest in AGL’s units in APT and thereby contravened s 606 of the Corporations Act 2001.
293 We were also referred to the contents of a letter written by the Chief Executive Officer of Alinta, Mr Browning, to the Chief Executive Officer of AGL and dated 2 June 2006. He wrote:
‘I refer to the Merger Implementation Agreement (MIA) which was signed between Alinta Limited and AGL on 1 June 2006.
Following implementation of the schemes of arrangement under the MIA, Alinta will acquire a downstream interest in AGL’s 30% holding in APT, which is exempted by the Corporations Act.
The purpose of this letter is to confirm that to the extent that the “ordinary course of business” and other obligations in the MIA, or in any other documents to be subsequently executed, may, in the interim (ie pending implementation of the schemes) give Alinta a relevant interest in APT securities held through AGL which exceed 20% of APT (additional APT securities), those obligations do not relate to voting of the additional APT securities and, if they relate to disposal of additional APT securities, are subject to ASIC providing an appropriate exemption under section 609(7) of the Corporations Act within 3 months. This does not affect the operation of the conditions precedent in clauses 3.1 and 3.2 of the MIA in any way.’
294 The letter was no doubt written as a consequence of the execution of the MIA. The second paragraph of the letter serves to confirm the understanding of the parties that after implementation Alinta will have acquired AGL’s 30% holding in APT.
295 It is not clear what Mr Browning means by the words ‘which is exempted by the Corporations Act’. The letter appears to be an an attempt to limit Alinta’s power to control AGL’s disposal of its units in APT by suggesting that Alinta’s power was limited to control of 20% rather than 30% of the units in APT and/or the parties obtaining a declaration from ASIC. The letter could not achieve its aims. Alinta acquired its power to restrict disposal by entering into the MIA. It thereby acquired the power in relation to all of AGL’s units. We have not needed to rely upon the terms of this letter for our construction of the MIA even if permissible to do so (c.f. Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; Toll (FCGT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at [40]).
296 It was also contended that Merge Co contravened s 606 by entering into the Regulatory Deed and the Relationship Deed. APL argued that if the MIAs and the Regulatory Deed and the Relationship Deed were read together, it must be concluded that Merge Co has obtained a relevant interest in AGL’s units in APT. Alternatively, and if the Court was of the opinion that no relevant interest was acquired by Merge Co in those units by reason of Merge Co entering into the first MIA, the Court could find that such a relevant interest was acquired by Merge Co separately entering into the Regulatory Deed and the Relationship Deed. We have found that Merge Co acquired a relevant interest by entering into the first MIA. We do not need therefore to address the contention that Merge Co acquired a relevant interest by reason of entering into the second MIA either alone or in conjunction with all three deeds together. If we are wrong about Merge Co acquiring a relevant interest by entering into the first MIA, the same conclusion would follow in relation to the identical second MIA. We shall address the contention that Merge Co acquired a relevant interest by separately entering into the Regulatory Deed and the Relationship Deed.
The Regulatory Deed
297 The same parties which had entered into the MIAs entered into a Regulatory Deed on 22 June 2006. The purpose of the Regulatory Deed was to record the parties’ agreement as to the consequences for the transaction if a Regulatory Trigger occurred (‘Background B’). A Regulatory Trigger was defined in clause 2 of the Regulatory Deed:
‘2 Regulatory Triggers
The parties agree and acknowledge that each of the following events will constitute a Regulatory Trigger:
(a) if before the date of the Scheme Meetings a Regulatory Authority issues an order, direction, decree, ruling or requirement which prohibits Alinta or Merge Co from acquiring ownership of any or part of any Alinta Scheme Asset (Offending Asset) or which prohibits the AGL Scheme from being implemented if the Offending Asset forms part of the assets owned by AGL at the time the AGL Scheme is implemented);
(b) if before the date of the Scheme Meetings a Regulatory Authority obtains from a Court of competent jurisdiction a temporary restraining order, preliminary or permanent injunction or other order which prevents the AGL Scheme from being implemented if the Offending Asset forms part of the assets of AGL at the time the AGL Scheme is implemented; and
(c) if before 4 August 2006, the ACCC has not given informal clearance to allow the AGL Scheme to be implemented on the basis that all of the Alinta Scheme Assets form part of the assets owned by AGL at the time the AGL Scheme is implemented.’
298 An Offending Asset is therefore any part of the Alinta Scheme Assets which were subject to the order of a Regulatory Authority. ‘Alinta Scheme Asset’ is defined in Schedule 2 of the Regulatory Deed.
299 Clause 3 of the Regulatory Deed required Merge Co and Alinta to give written notice to each other in the event of either becoming aware of the occurrence of a Regulatory Trigger.
300 Clause 4 dealt with completion of the transaction where the Offending Asset does not include AGL’s units in APT. More relevantly, clause 5 dealt with the circumstances where the Offending Asset was AGL’s units in APT. Clause 5 provides:
‘5 Completion of Transaction where Offending Asset is or includes APT
(a) If a Trigger Notice is delivered pursuant to clause 3 and the Offending Asset is or includes the APT Units or the Regulatory Trigger is a clause 2(c) Regulatory Trigger (APT Trigger Notice), then AGL must notify Alinta in writing by:
(i) if the APT Trigger Notice is delivered before 15 August 2006, 31 August 2006; or
(ii) if the APT Trigger Notice is delivered after 15 August 2006, 10 Business Days after Alinta delivers the APT Trigger Notice to AGL,
whether or not it elects to proceed to Completion of the Transaction (subject to the terms of the MIA) and if it does elect to proceed to Completion whether this is on the basis that clause 4 either:
(iii) does; or
(iv) does not apply
to the APT Units and any other Alinta Scheme Assets the subject of the APT Trigger Notice.
(b) If notice is given under subparagraph (a)(iii), clause 4 shall apply to the APT Units and any other Alinta Scheme Assets the subject of the APT Trigger Notice. In this event for the purpose of paragraph (b) of clause 4, the APT Units are taken to be included as an asset in Part A of Schedule 2 at a value equal to the APT Exercise Price (as adjusted pursuant to clause 6).
(c) If AGL receives an APT Trigger Notice and a notice is not given by AGL under paragraph (a) above within the relevant period, AGL is taken to have notified Alinta that it elects to proceed to Completion of the Transaction (subject to the terms of the MIA) on the basis that clause 4 does not apply to the APT Units or any other Alinta Scheme Assets the subject of the APT Trigger Notice.’
301 The ‘APT units’ are defined in the Regulatory Deed as meaning the 83,668,630 units issued in APT held by AGL as at the date of the MIA, together with any additional units in APT issued to the AGL Group under APT’s dividend reinvestment plan in respect of APT’s distribution for the period ended 30 June 2006 (Regulatory Deed Schedule 1).
302 In clause 7 of the Regulatory Deed Alinta granted to AGL Energy Limited a right of first refusal to acquire the APT units at any time during the period of 12 months following completion. For the right of first refusal to operate Alinta had to notify AGL in writing if the AGL Group Company holding the APT units proposed to dispose of the APT units during the period and allow AGL Energy Limited a period of one month in which to acquire the APT units.
303 Clause 7(c) provided for a purchase price payable in the event that AGL Energy sought to acquire the APT units in accordance with clause 7.
304 It is implicit in these provisions that if a Regulatory Authority did not object to Alinta acquiring AGL’s units in APT, AGL was under an obligation to proceed with the transaction and not dispose of its units in APT. The Regulatory Deed is further evidence that the parties assumed that the APT units, as it was defined in the Regulatory Deed which included all of the AGL’s 30% interest in the units in APT, would be held pending the completion of the transfer and for up to a year after. In those circumstances, if this were the first deed executed on 22 June 2006 there would have been a contravention of s 606(1) of the Corporations Act 2001 by reason of the agreement between AGL and Merge Co which gave Merge Co the power to control the exercise by AGL of the disposal of its units in APT (s 608(1)(c) Corporations Act 2001).
305 The Regulatory Deed required Merge Co to act in the event that Merge Co became aware of the occurrence of a Regulatory Trigger. The Regulatory Deed assumes that both Alinta and Merge Co could restrain AGL from disposing of its units in APT otherwise than in accordance with the Regulatory Deed. That being the case, if the deed were performed, Merge Co would have a relevant interest in the APT units. We are of the opinion that the Regulatory Deed gave Merge Co a relevant interest in the AGL units in APT within the meaning of s 608(8) of the Corporations Act 2001.
306 However, for the reasons already given, we do not think that Merge Co acquired a relevant interest in the AGL units in APT by entry into the Regulatory Deed because it already had such an interest by having entered into the first MIA.
The Relationship Deed
307 The Relationship Deed was executed on the same day by the same parties which had entered into the MIAs. The Relationship Deed shows it was entered into to record Merge Co and AGL Energy’s agreement with respect to the ongoing relationship between AGL Energy Group and Merge Co Group following the implementation of the transaction (‘Background D’).
308 The Relationship Deed was not to become effective until the transaction had been implemented in accordance with the MIA so, in that regard, was not to become effective until the Scheme Effective Date.
309 ‘Merge Co Group’ is defined in Schedule 1 of the Relationship Deed:
‘Merge Co Group means Merge Co and its Subsidiaries immediately following Completion (which will exclude AGL Energy and its Subsidiaries), including the companies listed in Schedule 4 (including for the avoidance of doubt, the ActewAGL Distribution Partnership), and, where the context requires, any one of them.’
310 The companies listed in Schedule 4 include ‘Australian Pipeline Limited ABN 99 091 344 704 (50%)’ and ‘Australian Pipeline Trust ABN 21 858 175 226 (30%)’. APT therefore must be understood to be part of the Merge Co Group.
311 APL relied upon two specific clauses of the Relationship Deed which it said showed that Merge Co had the power to control the disposal of AGL’s securities in APT or gave it a relevant interest by AGL giving it an enforceable right.
312 Clause 25.9(b) of the Relationship Deed provides:
‘The parties agree and acknowledge that:
...
(b) where this deed obliges or purports to oblige any Merge Co Group company or the Merge Co Group to act or to refrain from acting or otherwise specifies or purports to specify the obligations of the Merge Co Group or any Merge Co Group company, Merge Co will procure that each member of the Merge Co Group acts or refrains from acting, in accordance with this deed and otherwise complies with its obligations under this deed; ...’
313 Clause 25.12(b) provides:
‘Each party agrees to do anything the other party reasonably asks (such as obtaining consents, signing and providing documents and getting documents completed and signed):
...
(b) to give effect to the intentions of the parties and the objectives of this deed the transactions contemplated by it including negotiating in good faith with respect to any matters requested by any of the parties to this deed, and by the execution and delivery of documents and other instruments; ...’
314 It was contended by APL that the Relationship Deed gave Merge Co the power to control the exercise by AGL of its power to dispose of AGL’s 30% interest in APT and therefore gave Merge Co a relevant interest in AGL’s securities in APT within the meaning of s 608(1).
315 Moreover, it was contended the Relationship Deed assumed that AGL would continue to hold its units in APT until the implementation of the transaction and that, if it did not, AGL would be in breach of the Relationship Deed. In those circumstances, AGL had given to Merge Co an enforceable right in relation to AGL’s units in APT and Merge Co would be deemed to ‘already have a relevant interest in the securities’ (s 608(8)).
316 We think both contentions must be accepted. First, because the Relationship Deed gave Merge Co the power to control APL and APT it thereby acquired the power to control the exercise by AGL of its right to dispose of its units in APT. We also agree that the Relationship Deed does assume that AGL will continue to hold its units in APT until the implementation of the transaction and after. That follows because APL and APT are included in the definition of the Merge Co Group.
317 Therefore, if we are wrong about our conclusion that Merge Co acquired a relevant interest in AGL’s units in APT by entering into the first MIA, it is our opinion that Merge Co acquired such a relevant interest by entering into the Relationship Deed.
The Transaction Implementation Deed
318 The fourth document which was entered into by the parties who entered into the MIA and Numar Pty Ltd was the Transaction Implementation Deed. APL does not contend that by entering into that deed Merge Co, or any other party for that matter, contravened s 606.
319 The document, however, is relevant in relation to the ASIC Declaration. Clause 2.1 sets out the objectives of the parties in entering into the deed, the second of which was to procure that all steps required to be implemented in connection with the transaction are implemented in accordance with the timetable. The substantive provisions are in clause 2.2 which provides:
‘2.2 Transaction steps
Despite anything else in this deed, the Merger Implementation Agreement (including clause 33.13) or any other Transaction Document, each party shall do all things and execute all documents within its power or control, and shall procure that each of its subsidiaries does all things and executes all documents within its power and control, to ensure that each of the steps in Attachment A for which responsibility is allocated to it under Attachment A takes place (subject to Attachment A) in the sequence set out in Attachment A, and shall use its best endeavours to do so, so as to enable the Timetable to be met.
The parties acknowledge that steps 2 and 3 of Attachment A have occurred prior to or on the date of this deed.’
320 Clause 2.3 obliged each of AGL and Alinta to use its best endeavours to ensure that Merge Co complied with its obligations under the Deed.
321 ‘The timetable’ is defined to be the timetable set out in Attachment D. Relevantly, the Second Court Hearing is stated to be Friday, 15 September 2006.
4 August 2006
322 On 4 August 2006 Alinta’s shareholding in AGL fell below 20% as a result of the exercise of withdrawal rights in relation to Alinta’s takeover offer and the rescission of contracts arising as a result of acceptances of Alinta’s takeover offer to shareholders of AGL
323 On 16 August Alinta acquired through Trewas 8.14% of the units in APT. By 21 August that had increased to 9.5% and in further on market purchases concluding on 22 August Alinta and Trewas acquired 10.25% of the issued units in APT.
324 The argument is that once the protection of Alinta’s relevant interest by the exemption in s 611, Item 1 of the Corporations Act 2001 ceased, then the relevant interest it held by virtue of the MIA became effective and was held thereafter. If Alinta had a relevant interest in AGL’s units in APT on 4 August 2006, it would have had at that time a relevant interest in 30% of those units. Alinta and Trewas would thereby have contravened s 606 by acquiring the further units in APT because its voting power in APT would have increased from in the order of 30% to 40%.
325 Alinta argued that it did not have a relevant interest by entering into the MIA or the Relationship Deed or the Regulatory Deed for the same reasons Merge Co advanced to argue that it did not acquire a relevant interest. Therefore because it did not have a relevant interest as at 22 June 2006 it did not have a relevant interest to become effective at 4 August 2006. It was also argued that Alinta’s position was protected by the ASIC Declaration.
326 The first argument must be rejected. Alinta was in the same or even stronger position than Merge Co to control the exercise of the disposal of AGL’s units in APT. Our reasons in relation to Merge Co’s contravention are apposite in all respects in relation to Alinta’s position.
327 In our opinion, Alinta held a relevant interest in AGL’s units in APT as at 4 August unless it was protected by the ASIC Declaration.
The ASIC Declaration
328 The ASIC Declaration is only relevant in relation to the question whether Alinta held a relevant interest in AGL’s units in APT on 4 August 2006. Counsel for Merge Co conceded that the ASIC Declaration did not protect Merge Co if Merge Co acquired a relevant interest by entering into the MIA. That concession was rightly made in our opinion.
329 The ASIC Declaration was made pursuant to s 655A(1)(b) of the Corporations Act 2001 which, as previously mentioned, empowers ASIC to declare that Ch 6 of the Corporations Act 2001 applies to a person as if specified provisions were omitted, modified or varied in the declaration.
330 The ASIC Declaration had the effect of omitting s 609(7) and substituting the ‘subsection’ contained in the declaration. The purpose of the ASIC Declaration, at least from Alinta’s point of view, was to obtain the kind of protection which is offered by s 609(7) of the Corporations Act 2001. That subsection provides:
‘609(7) A person does not have a relevant interest in securities merely because of an agreement if the agreement:
(a) is conditional on:
(i) a resolution under item 7 in the table in section 611 being passed; or
(ii) ASIC exempting the acquisition under the agreement from the provisions of this Chapter under section 655A; and
(b) does not confer any control over, or power to substantially influence, the exercise of a voting right attached to the securities; and
(c) does not restrict disposal of the securities for more than 3 months from the date when the agreement is entered into.
The person acquires a relevant interest in the securities when the condition referred to in paragraph (a) is satisfied.’
331 There are two differences between the ASIC Declaration made and the provisions of s 609(7). Paragraph (a)(iii) of the ASIC Declaration provides that a person does not have a relevant interest if the agreement is conditional on a scheme of arrangement approved by the Court under Part 5.1 taking effect. Paragraph (c) of the ASIC Declaration provides that a person does not have a relevant interest if the agreement does not restrict the disposal of the securities for more than four months from the date when the agreement was entered into.
332 APL argued that the ASIC Declaration did not protect Alinta in relation to its claimed contraventions of s 606(1) for four separate reasons:
(a) it did not operate retrospectively (i.e. in respect of any acquisitions of relevant interest in the AGL 30% parcel prior to 3 July 2006);
(b) it operated only in respect of an agreement of the kind of the second MIA;
(c) it operated only in respect of an agreement conditional on a scheme of arrangement approved by the Court under Part 5.1 taking effect; and
(d) it operated only in respect of an agreement which did not restrict the disposal of AGL shares for more than four months from the date the agreement was entered into.
333 The ASIC Declaration plainly operated retrospectively in the sense of operating in respect of a past event, namely the second MIA. The ASIC Declaration was related to that anterior agreement. That is plain by the preamble to the ASIC Declaration and by the schedules themselves. However, the ASIC Declaration did not operate retrospectively in a manner relevant to this issue as it only applies for the purposes of this case to the further acquisitions made in August after the ASIC Declaration was made.
334 The relevant question is not whether Alinta acquired a relevant interest on 4 August but whether it had such an interest because of the MIA and related Deeds continuing to bind Alinta and AGL. The ASIC Declaration is framed appropriately to so apply if it is otherwise effective. It refers to having a relevant interest rather than acquiring a relevant interest.
335 It was contended by APL that the ASIC Declaration did not apply to the Relationship Deed and the Regulatory Deed and, indeed, the Transaction Implementation Deed. We do not accept that contention. Those deeds are in our opinion each an agreement ‘of the kind’ referred to in Schedule B of the ASIC Declaration. Each of the documents was interdependent and complementary with the others.
336 Next it was put that the ASIC Declaration only operated in respect of an agreement conditional on a scheme of arrangement approved by the Court under Part 5.1 of the Corporations Act 2001 taking effect. APL contended that none of the provisions of the MIA which restrict AGL’s ability to dispose of part or whole of the AGL parcel are conditional on the AGL Scheme taking effect. APL referred in that regard to clauses 3.1(g)(ii), 3.9, 17(f), 22 and 27(c). APL is correct in contending that the clauses of the MIA which restricted the ability of AGL to dispose of the AGL parcel were not conditional upon approval of the AGL scheme of arrangement. That reflects the wider fact that the MIA bound the parties in various ways as soon as it came into existence. However, those obligations were all directed to achieving the ultimate substantive transaction that was the object of the MIA. That transaction was conditional on approval of the AGL scheme of arrangement. The ‘agreement’ referred to in the declaration was the agreement to effect that transaction.
337 Clause 3.1(a) of the MIA provides:
‘The obligations of AGL and Merge Co to implement the AGL Scheme are subject to the satisfaction of each of the following conditions precedent (which are subject to clause 3.3) to the extent and in the manner set out in clauses 3.5 and 3.6:
(a) Schemes Effective: That the AGL Scheme and the Alinta Scheme become Effective by the Sunset Date.’
‘Effective’ is defined in the Dictionary:
‘Effective when used in relation to the AGL Scheme or the Alinta Scheme, means the coming into effect, pursuant to section 411(10) of the Corporations Act, of the order of the Court made under sections 411(4)(b) and 411(6) in relation to that Scheme.’
Those subsections provide for Court approval of schemes of arrangements.
338 Clause 3.17 provides:
‘3.17 Consultation on failure of conditions precedent
(a) Consultation: If a condition precedent contained in clause 3.1 or clause 3.2 (as the case may be) is not satisfied or waived by the date specified in clause 3.1 or clause 3.2 (as the case may be) for satisfaction of that condition precedent or if the Scheme Effective Date has not occurred by the Sunset Date, AGL or Alinta will (unless that non-satisfaction is as a result of the circumstances contemplated by clause 3.17(b)(ii)) consult and negotiate in good faith:
(i) with a view to determining whether the Transaction may proceed by way of alternative means or methods; or
(ii) to extend the date for satisfaction of the relevant condition precedent or the Sunset Date.
(b) Failure to agree:
If:
(i) AGL and Alinta are unable to reach agreement under clause 3.17(a):
(A) within ten Business Days after the relevant date; or
(B) by the Sunset Date; or
(ii) a condition precedent has not been satisfied as a result of a deliberate action or omission of AGL or Alinta,
then unless that condition is waived by the relevant party or parties having the benefit of the condition as referred to in clause 3.7 or clause 3.8 (as the case may be), AGL or Alinta (as the case may) may terminate this agreement without any liability to the other parties by reason of that termination unless the failure of the condition precedent to be satisfied or of the Scheme Effective Date to occur, arises out of, or is caused by, any antecedent breach by the terminating party of this agreement.’
The Scheme Effective date is defined to mean the date on which both the AGL Scheme and the Alinta Scheme became Effective. Effective has the meaning which we have earlier noted.
339 In our opinion, clause 3.17 does not mean that the agreement is not conditional upon Court approval. That clause still assumes that the scheme will become effective by the Scheme Effective date which is the date upon which the AGL Scheme and the Alinta Scheme become effective. They can only become effective if, as has already been shown, the schemes coming into effect upon the orders of the Court made under s 411(4)(b) and 411(6). We do not read clause 3.17 to mean that the agreement was not conditional upon Court approval as condition precedent 3.1(a) provides. The transaction was conditional upon Court approval. Without Court approval the transaction could not occur. In that regard, we agree with the conclusion of the primary judge.
340 Lastly, APL argued that the ASIC Declaration only operated in respect of an MIA which did not restrict the disposal of AGL shares for more than four months.
341 In its application to ASIC for a term of the kind made in paragraph (c) of the ASIC Declaration, Alinta’s solicitors advised that the remaining steps to implementation of the schemes would take until 2 October 2006. In its reasons, ASIC said:
‘8(i) ASIC accepted Alinta’s submissions at section 4 of the Application that, due to the length of time needed to negotiate the details of the proposed transaction, the schemes of arrangement would not be able to be implemented within 3 months of the date of the MIA. ASIC considered that given the length and complexity of the negotiations and of the resulting transaction proposal, it was appropriate to extend the period in paragraph 609(7)(c) from 3 months to 4 months as requested by Alinta. ASIC did not consider that a one-month extension would be overly detrimental to APT shareholders in this instance;’
342 It was contended that the practical effect of clause 3.1(g)(ii) of the MIA is to restrict AGL in the disposal of its units in APT for a period from 26 April 2006 to 8.00 am on the Second Court Date which, as previously noticed, means ‘the first day of hearing of an application made to the Court for orders pursuant to sections 411(4)(b) and 411(6) of the Corporations Act approving the Schemes as the case may be’.
343 The fact that there might have been a restriction on disposal of AGL’s units in APT between 26 April and 1 June 2006 is not relevant because, as APL contended, the ASIC Declaration is not intended to apply to the HOA. It only applies to an agreement of the kind of the MIA dated 22 June 2006 and, in that regard, applies to the MIA of 1 June 2006 as well as the MIA of 22 June 2006.
344 The question is not whether there has been a restriction on disposal of those units between 26 April 2006 and 1 June 2006, but whether any agreement of the kind contemplated in the ASIC Declaration restricts disposal of the securities for more than four months.
345 It was also contended that clauses 3.1(a) and 3.2(a) provided that the AGL Scheme of Arrangement and the Alinta Scheme of Arrangement could become effective by the Sunset Date (31 December 2006 or such later date agreed by AGL and Alinta in writing). It was put that the Second Court Date could be as late as 31 December 2006 because that was the Sunset Date referred to in clauses 3.1(a) and 3.2(a). In that event, the restrictions on disposal would continue to apply until that date. Therefore, the restrictions would continue to apply for more than four months from 22 June.
346 The relevant condition of the MIA (clause 3.1(a)) was that the schemes of arrangement become effective by the Sunset Date which was 31 December 2006 or such later date as agreed by AGL and Alinta in writing. There were a number of other conditions precedent which required events to have occurred by the Second Court Date which we have already noted was the first day of the hearing of the application to the Court for approval of the schemes. The second Court hearing was stated in the Timetable to the Transaction Implementation Deed to be 15 September 2006. That deed was amended by the Transaction Implementation Deed – Amending Deed which was entered into on 18 August 2006 so that the second Court hearing became 9 October 2006.
347 Both dates, of course, were within four months of the date upon which the second MIA was entered into. But that does not mean that the MIA restricted disposal of the securities for no more than four months. The MIA contemplated, notwithstanding the Second Court Date, that it would continue to bind the parties until the Sunset Date, 31 December 2006 or such later date as agreed by the parties.
348 Alinta advanced two contentions in answer to this conclusion. First, it was contended that the combined effect of the deeds entered into on 22 June, particularly the second MIA and the Transaction Implementation Deed (as later amended), was that the parties were bound to ensure that the Second Court Date was no later than 9 October – within the four month period. The primary judge would have so held. However, the substance of the obligation was to use best endeavours to achieve that result. As Finkelstein J has demonstrated, achievement of approval by 9 October was not entirely within the power of the parties. If the time were extended, the contractual restrictions on disposal would continue to apply.
349 It follows that whether the MIA is looked at alone or in conjunction with the Transaction Implementation Deed, the first contention is not accepted.
350 Secondly, Alinta contended that the restrictions in the agreement did not operate for more than the four month period because, on 28 August 2006, the Court called the second scheme hearing date for 9 October 2006 on which date the scheme was actually approved. That was within four months of the entry into the second MIA.
351 As a matter of language, clause (c) of the ASIC Declaration is capable of being construed so as to refer to the period of restriction that actually occurs, rather than to the period that is provided for by the MIA at the time it comes into force. That construction would remove the protection of the section after four months if the conditions had not been fulfilled by then. The argument for APL requires construing clause (c) as if it included words such as ‘in terms’, ‘on its face’, or ‘expressly’. Furthermore, APL’s construction leads to an odd result in this case. ASIC had the MIA and the other deeds before it when the Declaration was drawn but, on APL’s construction, the MIA did not ever comply with the condition. Compliance with the condition was always impossible. It is submitted for Alinta that the vice at which the provision is aimed is delay in the performance of the condition in clause (a) – in this case, approval of the scheme. The apparent purpose of s 609(7) of the Corporations Act 2001 gives some support to this submission. The provision is intended to deal with the issues raised by conditional agreements. If the purpose is to provide a time limit by which a condition is to be fulfilled, then that can be achieved by looking at the actual events that occur. Once the limit is reached, the statutory protection is lost. The MIA might or might not restrict disposal for more than four months. That is best judged by events.
352 If this were simply an inter partes transaction dependent upon the deduced objective intention of Alinta and ASIC, there would be much to be said for this submission by Alinta. It would achieve a result that each of Alinta and ASIC appeared to intend. However, a declaration pursuant to s 655A of the Corporations Act 2001 cannot be so regarded. The effect of it is to amend the terms of a specified provision of a law of general application. The amendment to s 609(7)(c) in this case was simply to extend the time from three to four months. That provision should otherwise bear the construction that it normally would. The overall structure of s 609(7) points to the effect of clause (c) operating according to the terms of the agreement rather than upon the events that happen. Clauses (a) and (b) are clearly enough to be so construed. The last part of the subsection, providing that the relevant interest is acquired when the condition referred to in (a) is satisfied, assumes that the condition will actually have been satisfied within the three month time limit, rather than that the condition might be satisfied later, albeit with an interest deemed to have been acquired earlier at the expiry of the time limit.
353 Therefore, Alinta’s second contention is not accepted. In our opinion, Alinta cannot rely upon the ASIC Declaration. We therefore, respectfully, disagree with the primary judge’s opinion in that regard.
Alinta’s acquisitions between 16 August and 22 August 2006
354 We have already referred to the relevant facts in relation to this aspect of the declaration proceedings. Put shortly, on 4 August 2006 Alinta’s shareholding in AGL fell below 20% for the reasons mentioned earlier in these reasons and therefore it no longer held a relevant interest in AGL’s units in APT by reason of its shareholding in AGL. However, for reasons we have already given, Alinta held a relevant interest in AGL’s units in APT by having entered into the first MIA. It therefore held a relevant interest in 30% of the AGL units in APT. The further acquisitions on 16 August increased Alinta’s voting power in APT from 30 to 40.25%. It subsequently reduced on 31 August 2006 when APT announced its intention to conduct an institutional placement and security purchase plan to existing APT unit holders. Alinta participated in that placement with the consent of the Panel which, as already indicated, varied orders to allow Alinta to participate. AGL did not participate in the placement and, as a result, its voting share reduced from 30% to approximately 26%. Therefore, Alinta’s voting power after 16 August increased by 10.25% and later reduced by 4% for the reasons just mentioned. Alinta contravened s 606 by engaging in the further acquisitions.
355 We therefore disagree with the primary judge in two respects. We think that when Alinta and Merge Co entered into the MIA, the MIA gave both Alinta and Merge Co a relevant interest in AGL units in APT. In that regard we think Merge Co contravened s 606. However, Alinta did not contravene s 606 when it entered into the MIA because it already had a relevant interest by reason of its takeover bid and therefore did not acquire a relevant interest at that time. On 4 August 2006 when its holding in AGL fell below 20%, it then had a relevant interest in AGL’s units in APT by reason of the MIA. We also respectfully disagree with the primary judge in regard to the effect of the ASIC Declaration.
Conclusion on the appeal in the declaration proceeding
356 It follows that, in our opinion, the appeal against the primary judge’s order dismissing the declaration proceeding must be allowed. However, APL has only succeeded in part. It has not established that Alinta acquired a relevant interest in the 83,668,630 units in APT by reason of entering into the HOA on 26 April 2006. Therefore, the declaration sought in paragraph 1A of the Amended Originating Process should not be made.
357 APL has established that the further acquisitions by Alinta and Trewas during the period 16 August to 31 August 2006 involved a contravention of s 606(1) of the Corporations Act 2001 and a declaration should be made to that effect in the terms of paragraph 1. It has also established that Merge Co acquired a relevant interest in the AGL units by reason of its entry into the MIA and the second MIA in contravention of s 606(1) of the Corporations Act 2001 and is therefore entitled to a declaration of the kind sought in paragraph 1B. For the reasons given, we do not think that if Merge Co acquired a relevant interest by entering into the second MIA it could thereafter acquire a relevant interest in the Regulatory Deed or the Relationship Deed. Therefore, we would confine the declaration to a 1B(a) and (b).
358 That leaves for consideration the other orders sought in the application. In our opinion, those matters are best resolved by referring the matter back to the primary judge for his consideration.
359 It should be noted that neither s 659B nor s 659C of the Act has been pleaded or relied upon by any party in either matter.
360 The first, second and fourth respondents should pay the appellant’s costs of the appeal and the proceeding below.
361 The orders and declarations which we propose should be made, subject to hearing the parties are:
ORDERS:
1. The appeal be allowed.
2. The order made by the primary judge on 20 October 2006 dismissing the application be set aside and in lieu thereof:
DECLARATIONS:
(1) The acquisition by the first and second respondents of 32,820,063 units in Australian Pipeline Trust during the period 16 August 2006 to 31 August 2006 inclusive was in contravention of s 606 of the Corporations Act 2001.
(2) The acquisition by the fourth respondent of a relevant interest in the AGL 30% Parcel by reason of its entry into:
(a) the Merger Implementation Agreement dated 1 June 2006;
(b) the Merger Implementation Agreement dated 22 June 2006;
was in contravention of s 606 of the Corporations Act 2001.
FURTHER ORDERS:
3. The proceeding be remitted to the primary judge for further consideration in accordance with these reasons.
4. The first, second and fourth respondents pay the appellants’ costs of the proceeding before the primary judge up to and including 20 October 2006.
5. The first, second and fourth respondents pay the appellants’ costs of the appeal.
Judicial review proceeding APPEAL
362 We have already summarised the issues arising on the notice of appeal and the notice of contention concerning the judicial review proceeding. One of those issues was whether s 657A and s 657D of the Corporations Act 2001 are invalid because they vest judicial power of the Commonwealth in the Panel contrary to Ch III of the Constitution. It is logical to consider that issue first as, if made out, the decisions and orders of the Panel are invalid.
Constitutional point
363 It will be recalled that the primary judge disagreed with the Panel’s conclusion that there had been a contravention of the Act, but was of the view that the Declaration and Orders could be supported on the alternative basis advanced by the Panel relying upon s 657A(2)(a) of the Corporations Act 2001. On that basis, his Honour held that the Declaration constituted a basis for determining what rights and obligations should be created in the future and that the Orders created those rights and obligations. It was concluded that the Panel did not exercise the judicial power of the Commonwealth.
364 This finding was consistent with provisional views expressed by Emmett J in Glencore International AG (2005) 220 ALR 495 particularly at 511. Those views were adopted by Goldberg J in Tower Software Engineering Pty Ltd; Pendant Software Pty Ltd v Harwood [2006] FCA 717 at [37].
365 The primary Judge did not have to consider the validity of s 657A(2)(b) of the Corporations Act 2001. However, in our view, the Panel was correct in finding that Alinta had contravened s 606 of the Corporations Act 2001 in making the further acquisitions. That finding was a basis for the declaration and order by the Panel. Thus, the validity of s 657A(2)(b) must be considered. A convenient starting point for discussion of the validity of s 657(2)(b) is the decision of the High Court in Precision Data Holdings Limited v Wills (1991) 173 CLR 167. That case concerned the exercise of powers by the then Corporations and Securities Panel pursuant to the Corporations Law of Victoria, broadly similar to those exercised by the Takeovers Panel in this case. The High Court held that exercise of the functions and powers conferred on the Panel by the then provisions were not the exercise of the exclusive judicial power of the Commonwealth. It may be useful to give a brief account of the history of this area of corporations law in order to place both Precision Data Holdings 173 CLR 167 and this case in context.
Legislative history
366 The Companies (Acquisition of Shares) Act 1980 (Cth) introduced provisions relating to takeovers which broadly followed the recommendations of the Company Law Advisory Committee (the Eggleston Committee). It dealt with the acquisition of shares in companies incorporated in the Australian Capital Territory and conferred power on the National Companies and Securities Commission to declare an acquisition of shares to be an ‘unacceptable acquisition’. In the event of such a declaration, the person who acquired the shares was deemed, for the purposes of s 45, to have acquired them in contravention of s 11 (s 60(1) Companies (Acquisition of Shares) Act 1980). The Commission was also given power to declare conduct to have been unacceptable conduct where a Part A statement had been served or where a takeover announcement had been made (s 60(3) and (4) Companies (Acquisition of Shares) Act 1980). The Court could, on the application of the person acquiring or engaging in the conduct, declare that the acquisition or the conduct was not unacceptable, in which event the Commission declaration had no further effect (s 60(6) Companies (Acquisition of Shares) Act 1980).
367 The Commission could not make a declaration unless it was satisfied that the Eggleston principles applied, namely, that the acquisition occurred in circumstances where, or that as a result of conduct to which the declaration relates (s 60(7) Companies (Acquisition of Shares) Act 1980):
‘(a) the shareholders and directors of a company did not know the identity of a person who proposed to acquire a substantial interest in the company;
(b) the shareholders and directors of a company did not have a reasonable time in which to consider a proposal under which a person would acquire a substantial interest in the company;
(c) the shareholders and directors of a company were not supplied with sufficient information to enable them to assess the merits of a proposal under which a person would acquire a substantial interest in the company; or
(d) the shareholders of a company did not all have equal opportunities to participate in any benefits accruing to shareholders under a proposal under which a person would acquire a substantial interest in the company.’
368 Section 11 of the Companies (Acquisition of Shares) Act 1980 prohibited the acquisition of shares in certain circumstances. Section 45 provided that, where a person had acquired shares in a company in contravention of s 11, the Court could, on the application of the Commission, the company, a member of the company or the person from whom the shares were acquired, make a number of orders, both negative and positive. Sections 46 and 47 of the Companies (Acquisition of Shares) Act 1980 gave power to the Court to make orders of various kinds related to takeovers and s 48 provided that the Court could ‘excuse contravention or non-compliance due to inadvertence etc’. Section 60(5) of the Companies (Acquisition of Shares) Act 1980 provided that the Court could, on application to the Commission, make various orders in the event that a declaration of unacceptable conduct had been made.
369 Some textual amendments were made in the following year (Companies (Acquisition of Shares) Amendment Act 1981 (Cth)). The Statute Law (Miscellaneous Amendments) Act (No 1) 1982 (Cth) inserted s 60A into the Companies (Acquisition of Shares) Act 1980, the effect of which was that, where the Commission made a declaration under subs 60 (1), (3) or (4), it could make the kind of order that the Court was authorised to make pursuant to s 45. A court was expressly given the power to vary or revoke any order (s 60A(4) Companies (Acquisition of Shares) Act 1980) and the Commission could not make an order if an application had been made to the Court (s 60A(9) Companies (Acquisition of Shares) Act 1980). Failure to comply with an order was an offence with a penalty of $2 500 or imprisonment for six months or both (s 60A(5) Companies (Acquisition of Shares) Act 1980). Further amendments were made to the Companies (Acquisition of Shares) Act 1980 by the Companies and Securities Legislation (Miscellaneous Amendments) Act 1983 (Cth), including the repeal and substitution of s 60, however the amendments did not change the basic scheme outlined above.
370 In 1989, following recommendations by the Companies and Securities Consultative Group, there was a major revamp of company law with the enactment of the Australian Securities Commission Act 1989 (Cth) and the Corporations Act 1989 (Cth) (the Corporations Act 1989) and complementary State legislation. Precision Data Holdings 173 CLR 167 concerned the Victorian legislation in this form, the Corporations (Victoria) Act 1990. The Australian Securities Commission was established to, in effect, take over from the National Companies and Securities Commission. The Corporations and Securities Panel (the 1989 Panel) was established by Pt 10 of the Australian Securities Commission Act 1989. The 1989 Panel was to consist of no fewer than five members, at least one of whom would be full time. Qualifications for appointment were knowledge of, or experience in, business, the administration of companies, the financial markets, law, economics and accounting (s 172(4) Australian Securities Commission Act 1989). The 1989 Panel was constituted by three members when it performed or exercised its functions or powers (s 184(1) Australian Securities Commission Act 1989). Division 3 dealt with hearings before the 1989 Panel. A member had power to summon witnesses (s 192 Australian Securities Commission Act 1989). A failure to appear and give evidence without reasonable excuse was an offence, as was the giving of false or misleading evidence (s 198 and s 199 Australian Securities Commission Act 1989). Obstruction or hindering the 1989 Panel or a member, or disrupting a hearing, or contravening a direction in relation to the restriction of publication was also an offence (s 200 Australian Securities Commission Act 1989). In addition, the 1989 Panel could certify failure to comply with the requirement concerning the attendance and giving of evidence at a hearing to the Court, in which event the Court could order the person to comply with the requirement as specified in the order (s 201 Australian Securities Commission Act 1989).
371 Hearings were to be conducted with as little formality and technicality and with as much expedition as the requirements of national scheme laws and a proper consideration of the matters before the 1989 Panel would permit. The 1989 Panel had power to take evidence on oath or affirmation and the ancillary power to acquire a person to take an oath or affirmation and administer that oath or affirmation (s 192 Australian Securities Commission Act 1989). The 1989 Panel was not bound by the rules of evidence but was bound to observe the rules of natural justice (s 193 Australian Securities Commission Act 1989). Persons appearing could be represented by others, including a barrister or a solicitor (s 194 Australian Securities Commission Act 1989). The 1989 Panel could refer a question of law arising at a hearing to the Court (s 196 Australian Securities Commission Act 1989). Members, in the performance or exercise of powers and functions, had the same protection and immunity as a Justice of the High Court, and barristers, solicitors and other persons appearing on a person’s behalf had the same protection and immunity as a barrister in appearing for a party in a proceeding in the High Court (s 197 Australian Securities Commission Act 1989).
372 The Corporations Act 1989was part of a national scheme, each State having enacted a corporations law in identical terms. Chapter 6 dealt with the acquisition of shares; Pt 6.1 dealt with interpretation; Pt 6.2 with control of acquisition of shares; Pt 6.3 with takeover schemes; Pt 6.4 with takeover announcements; Pt 6.5 with provisions relating to both takeover offers and takeover announcements; Pt 6.6 with liability for misstatements; Pt 6.7 with substantial shareholdings; Pt 6.8 with power to obtain information as to beneficial ownership of shares; Pt 6.9 dealt with powers of the Commission and ancillary powers of the Court; Pt 6.10 dealt with powers of the Court. The other Parts are not of any interest here. Because of the significance of the decision in Precision Data Holdings 173 CLR 167, it is necessary to look at the provisions of Pt 6.9 and Pt 6.10 with some care.
373 ‘Unacceptable circumstances’ were defined in s 732 of the Corporations Act 1989 in accordance with the Eggleston principles. Section 733 of the Corporations Act 1989 empowered the Commission to apply to the 1989 Panel for declarations in relation to unacceptable circumstances. Application could be made by the Commission to the 1989 Panel for application of the substantive provision, s 733(3), which was in the following terms:
‘(3) Where, on an application under subsection (1), the Panel is satisfied:
(a) that unacceptable circumstances have occurred:
(i) in relation to an acquisition of shares in the company; or
(ii) as a result of conduct engaged in by a person in relation to shares in, or the affairs of, the company; and
(b) having regard to the matters referred to in section 731 and any other matters the Panel considers relevant, that it is in the public interest to do so;
the Panel may by writing declare the acquisition to have been an unacceptable acquisition, or the conduct to have been unacceptable conduct, as the case may be.’
374 There was a limited period during which the 1989 Panel could make a declaration (s 733(4) Corporations Act 1989) and a declaration could only be made if the 1989 Panel had given each person to whom the declaration related an opportunity to appear at a hearing before the 1989 Panel and to make submissions and give evidence (s 733(5) Corporations Act 1989). The 1989 Panel had to give to each person to whom a declaration related a copy of the instrument by which the declaration was made and a written statement of the 1989 Panel’s reasons for deciding to make the declaration. The 1989 Panel also had to cause a copy of the instrument by which the declaration was made to be published in the Gazette (s 733(6) Corporations Act 1989).
375 Section 734 of the Corporations Act 1989 dealt with the power of the 1989 Panel to make orders in circumstances where the 1989 Panel had first made a declaration under s 733(3). The substantive provision was s 734(2) which was in the following terms:
‘(2) On the application of the Commission, the Panel may, whether or not it has previously made an order under this section in reliance on the declaration, make in writing one or more of the following orders:
(a) any order that it thinks necessary or desirable to protect the rights or interests of any person affected by the acquisition or conduct or to ensure, as far as possible, that a takeover scheme or takeover announcement, or a proposed takeover scheme or proposed takeover announcement, in relation to shares in the company proceeds in the manner in which it would have proceeded if that acquisition had not taken place or that conduct had not been engaged in;
(b) without limiting the generality of paragraph (a):
(i) an order directing a person to supply specified information to the holders of shares in the company;
(ii) an order prohibiting the exercise of voting or other rights attached to specified shares;
(iii) an order directing a company not to make payment, or to defer making payment, of any amount or amounts due from the company in respect of specified shares;
(iv) an order prohibiting the acquisition or disposal of, or of an interest in, specified shares;
(v) an order directing the disposal of, or of an interest in, specified shares;
(vi) an order directing a company not to register a transfer or transmission of specified shares, being a transfer or transmission occurring after the commencement of this section;
(vii) an order that an exercise of the voting or other rights attached to specified shares be disregarded;
(viii) an order directing a company not to issue shares to a person who holds shares in the company, being shares that were proposed to be issued to the person because the person holds shares in the company or pursuant to an offer or invitation made or issued to the person because the person holds shares in the company;
(ix) an order cancelling, or declaring to be voidable, an agreement or offer that was made after the commencement of this section and that relates to a takeover scheme or takeover announcement, or to a proposed takeover scheme or proposed takeover announcement, or is otherwise connected with the acquisition of shares;
(x) an order directing a person who is registered as the holder of shares in respect of which an order under this section is in force to give written notice of that order to any person whom the holder knows to be entitled to exercise a right to vote attached to those shares;
(c) for the purpose of securing compliance with any order made under paragraph (a) or (b), an order directing a person to do, or to refrain from doing, a specified act.’
376 An opportunity again had to be given for a person to whom an order was directed to appear and make submissions and give evidence (s 734(6) Corporations Act 1989) and the 1989 Panel could not make an order if it were satisfied that the order would unfairly prejudice any person (s 734(7) Corporations Act 1989). Where an order was made the 1989 Panel was obliged to give a copy of the order and the written statement of the 1989 Panel’s reasons for the decision to make the order to any person to whom the order was directed (s 734(8) Corporations Act 1989). Section 735 of the Corporations Act 1989 contained miscellaneous provisions relating to orders made by the 1989 Panel, including the power to make an interim order (s 735(2) Corporations Act 1989).
377 Section 736 of the Corporations Act 1989 provided that, where a person contravened an order, the Court might, upon application by the Commission, make such order or orders as it considered necessary for the purpose of securing compliance including but not limited to a remedial order and an order directing a person to do or refrain from doing a specified act.
378 Part 6.10 dealt with the powers of the Court, to make orders where prohibited acquisitions of shares had taken place (s 737 Corporations Act 1989); where offers were not sent pursuant to a Part A statement (s 738 Corporations Act 1989); to protect rights under takeover schemes or announcements (s 739 Corporations Act 1989); in relation to unfair or unconscionable agreements, payments or benefits (s 740 Corporations Act 1989); with respect to a defaulting substantial shareholder (s 741 Corporations Act 1989); where beneficial ownership of shares had not been disclosed (s 742 Corporations Act 1989); and excusing orders where a contravention was due to inadvertence etc (s 743 Corporations Act 1989). Generally speaking, the power of the Court to make orders depended upon a finding by the Court of contravention of the Act.
Precision Data Holdings
379 The question reserved for the Full Court of the High Court in Precision Data Holdings 173 CLR 167 was:
‘… is the Corporations and Securities Panel precluded from validly exercising the functions and powers referred to in sections 733 and 734 of the Corporations Law of Victoria?’
380 The Corporations (Victoria) Act 1990applied the Corporations Act 1989as a law of Victoria and described that law as the Corporations Law of Victoria (s 7 Corporations (Victoria) Act 1990).
381 The relevant reasoning in the joint judgment of the whole of the Court appears between pages 188 and 192 of 173 CLR, all of which requires close consideration. However, the essential reason for the decision that the 1989 Panel did not exercise judicial power was that an adjudication by the 1989 Panel pursuant to s 733 was not an adjudication of a dispute about rights and obligations arising from the operation of the law on past events or conduct but was rather the creation of new rights and obligations. The Court, in substance, followed its decision in The Queen v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, particularly per Kitto J at 373–378 where the Court held that the Trade Practices Tribunal did not exercise judicial power. Kitto J said (123 CLR at 374-375):
‘Thus a judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist. It is right, I think, to conclude from the cases on the subject that a power which does not involve such a process and lead to such an end needs to possess some special compelling feature if its inclusion in the category of judicial power is to be justified.’
382 The decision in Mikasa (NSW) Pty Ltd v Festival Stores (1972) 127 CLR 617 was discussed in Precision Data Holdings 173 CLR 167 and distinguished as follows (173 CLR at 192):
‘The plaintiffs sought to extract some support for their case from Mikasa (NSW) Pty Ltd v Festival Stores ((1972) 127 CLR 617)where this Court held that s 90AA of the Trade Practices Act 1965 (Cth) vested judicial power in the Commonwealth Industrial Court, although the jurisdiction conferred by that section to grant an injunction was not conditioned by what a court of equity would, in ordinary cases, require before granting such relief. However, in that case, the legislation required the Commonwealth Industrial Court to make findings of fact in relation to events which occurred before the date of the application and to apply to the facts so found the provisions of the Act, in accordance with the construction which the Court put upon those provisions. As Walsh J noted (ibid, at p 649):
“[I]t is by those processes that the Court determines whether or not a person, who is a party to proceedings before it, has acted in breach of the Act and has thereby rendered himself liable to have an injunction granted against him.” ’
383 Section 90AA of the Trade Practices Act 1965 (Cth) considered in Mikasa 127 CLR 617 was in the following terms:
‘(1) Where a person has engaged in the practice of resale price maintenance, the Court may, on application by:
(a) the Attorney-General,
(b) the Commissioner or
(c) a person who has suffered loss or damage by reason of the first-mentioned person having engaged in that practice,
grant an injunction restraining the first-mentioned person from engaging in the practice of resale price maintenance in respect of such goods as are specified in the order ...
(3) Proceedings for contempt of court in respect of an injunction granted under this section may be brought by a person referred to in any of the paragraphs of sub-section (1) of this section.’
384 In Mikasa Barwick CJ said (127 CLR at 631) (agreed in by McTiernan J):
‘… the Act clearly proscribes the acts which it includes in its specification of the practice. It conditions the power to enjoin upon the breach in fact of that proscription. The determination that there is such a breach in fact is clearly a judicial function. Injunction to restrain an act in breach of a statute, particularly where that act is not made a criminal offence, is clearly, in my opinion, a judicial function and one traditionally performed by courts, where damage to an individual or his property results from that act. Latterly, the courts have come to enjoin breaches of statute which are in themselves breaches of the criminal law where the statute does not indicate that the criminal penalty is to be the sole sanction for the observance of the terms of the statute.
It seems to me that there is no substance in the submission that lack of statutory directions as to the manner in which the discretion to enjoin should be exercised, where breach of the statutory proscription is established to the court's satisfaction, renders the grant of the power to enjoin invalid either as non judicial or for any other reason.’ (emphasis added)
Menzies J said (127 CLR at 638) (agreed in by Stephen J):
‘I have no doubt, however, that the power conferred by s. 90AA is judicial power and nothing more. It is a power, in proceedings between parties with respect to a matter at issue between them, to grant an injunction to restrain what, in such proceedings, is found to be an unlawful practice.’
(emphasis added)
See also Walsh J (127 CLR at 649–650) and Gibbs J (127 CLR at 650–651).
Current legislative regime
385 There are significant differences between the current legislation and that considered by the High Court in Precision Data Holdings 173 CLR 167. As previously noted, the Panel is established by Part 10 of the Australian Securities and Investments Commission Act 2001. The qualification for membership is the same as in the Australian Securities Commission Act 1989 (s 172(4) Australian Securities and Investments Commission Act 2001). Like that Act, the Panel exercises its functions or powers in relation to a particular matter and constituted by three members (s 184(1) Australian Securities and Investments Commission Act 2001). Division 3, which governs Panel proceedings, is broadly similar to the regime in the Australian Securities Commission Act 1989 and in Precision Data Holdings 173 CLR 167, although the procedural rules can now be dealt with by regulation (s 195 Australian Securities and Investments Commission Act 2001). Legal representation is only with leave of the Panel (s 194 Australian Securities and Investments Commission Act 2001) and there is a new power enabling the Panel to accept written undertakings from a person affected or likely to be affected about a matter relevant to the proceedings (s 201A Australian Securities and Investments Commission Act 2001). In the event of breach of undertaking, the Panel may apply to the Court (s 201A(3) Australian Securities and Investments Commission Act 2001) and the Court may make various orders compelling performance and compensating persons affected (s 201A(4) Australian Securities and Investments Commission Act 2001).
386 The substantive provisions in relation to the Panel are contained in Div 2 of Pt 6.10 of the Corporations Act 2001. Subdivision B of Div 2 deals with unacceptable circumstances. Section 657A deals with the declaration of unacceptable circumstances; s 657B as to when the Panel may make a declaration; s 657C deals with persons who may apply and the period within which the application may be made; s 657D deals with the orders that the Panel may make following a declaration; and s 657E deals with interim orders. Those provisions relate to what might be called the substantive powers of the Panel and their exercise.
387 The relevant portions of s 657A of the Corporations Act 2001 for present purposes are as follows:
‘(1) The Panel may declare circumstances in relation to the affairs of a company to be unacceptable circumstances. Without limiting this, the Panel may declare circumstances to be unacceptable circumstances whether or not the circumstances constitute a contravention of a provision of this Act.
Note: Sections 659B and 659C deal with court proceedings during and after a takeover bid.
(2) The Panel may only declare circumstances to be unacceptable circumstances if it appears to the Panel that the circumstances:
(a) are unacceptable having regard to the effect of the circumstances on:
(i) the control, or potential control, of the company or another company; or
(ii) the acquisition, or proposed acquisition, by a person of a substantial interest in the company or another company; or
(b) are unacceptable because they constitute, or give rise to, a contravention of a provision of this Chapter or of Chapter 6A, 6B or 6C.
The Panel may only make a declaration under this subsection, or only decline to make a declaration under this subsection, if it considers that doing so is not against the public interest after taking into account any policy considerations that the Panel considers relevant.
(3) In exercising its powers under this section, the Panel:
(a) must have regard to:
(i) the purposes of this Chapter set out in section 602; and
(ii) the other provisions of this Chapter; and
(iii) the rules made under section 658C; and
(iv) the matters specified in regulations made for the purposes of paragraph 195(3)(c) of the ASIC Act; and
(b) may have regard to any other matters it considers relevant.
In having regard to the purpose set out in paragraph 602(c) in relation to an acquisition, or proposed acquisition, of a substantial interest in a company, body or scheme, the Panel must take into account the actions of the directors of the company or body or the responsible entity for a scheme (including actions that caused the acquisition or proposed acquisition not to proceed or contributed to it not proceeding).’
388 An application for a declaration or an order under s 657D or s 657E may be made by the bidder, the target, ASIC or any other person whose interests are affected by the relevant circumstances (s 657C(2) Corporations Act 2001). The orders that can be made pursuant to s 657D(2) of the Corporations Act 2001 are:
‘(2) The Panel may make any order (including a remedial order but not including an order directing a person to comply with a requirement of Chapter 6, 6A, 6B or 6C) that it thinks appropriate to:
(a) protect the rights or interests of any person affected by the circumstances; or
(b) ensure that a takeover bid or proposed takeover bid in relation to securities proceeds (as far as possible) in a way that it would have proceeded if the circumstances had not occurred; or
(c) specify in greater detail the requirements of an order made under this subsection; or
(d) determine who is to bear the costs of the parties to the proceedings before the Panel;
regardless of whether it has previously made an order under this subsection or section 657E in relation to the declaration. The Panel may also make any ancillary or consequential orders that it thinks appropriate.
Note: Section 9 defines remedial order.’
389 A ‘remedial order’ is defined very broadly to cover a great many positive and negative orders of a kind that are commonly made by courts in s 9 of the Corporations Act 2001.
390 It is an offence of strict liability to contravene a Panel order made under s 657D or s 657E (s 657F Corporations Act 2001). Section 657G of the Corporations Act 2001 deals with the civil enforcement by the Court of an order made by the Panel under s 657D or s 657E. It provides:
‘(1) If a person contravenes, or proposes to engage in conduct that would contravene, an order made by the Panel under section 657D or 657E, the Court may make any orders it considers appropriate to secure compliance with the Panel’s order, including:
(a) 1 or more remedial orders; and
(b) an order directing a person to do, or to refrain from doing, a specified act.
Note: Section 9 defines remedial order.
(2) An application for an order under this section may only be made by:
(a) ASIC; or
(b) the President of the Panel; or
(c) a person to whom the Panel’s order relates; or
(d) a person who was a party to the proceedings in which the Panel’s order was made.’
391 ‘The Court’ is defined in s 58AA of the Corporations Act 2001to mean any of:
‘(a) the Federal Court;
(b) the Supreme Court of a State or Territory;
(c) the Family Court of Australia;
(d) a court to which section 41 of the Family Law Act 1975 applies because of a Proclamation made under subsection 41(2) of that Act.’
392 The ‘Federal Court’ is defined in s 9 of the Corporations Act 2001 to mean ‘the Federal Court of Australia’.
393 Division 3 of Pt 6.10 deals with the Court’s powers. Section 659A provides that the Panel of its own motion can refer a question of law arising in a proceeding to the Court for decision. Section 659AA expressly provides that the object of the substantive provisions, s 659B and s 659C, is to make the Panel ‘the main forum for resolving disputes about a takeover bid until the bid period has ended’.
394 Section 659B provides:
‘659B(1) Only the following may commence court proceedings in relation to a takeover bid, or proposed takeover bid, before the end of the bid period:
(a) ASIC;
(b) a Minsiter of the Commonwealth;
(c) a Minister of a State or Territory in this jurisdiction;
(d) the holder of an office established by a law of:
(i) the Commonwealth; or
(ii) a State or Territory in this jurisdiction;
(e) a body corporate incorporated for a public purpose by a law of:
(i) the Commonwealth; or
(ii) a State or Territory in this jurisdiction;
to the extent to which it is exercising a power conferred by a law of the Commonwealth or a State or Territory in this jurisdiction.
Note: This restriction starts to apply as soon as there is a takeover bid, or a proposed takeover bid; it does not start to apply only when the bid period commences.
659B(2) A court may stay:
(a) court proceedings in relation to a takeover bid or proposed takeover bid; or
(b) court proceedings that would have a significant effect on the progress of a takeover bid;
until the end of the bid period.
659B(3) In deciding whether to exercise its powers under subsection (2), the court is to have regard to:
(a) the purposes of this Chapter; and
(b) the availability of review by the Panel under Division 2.
659B(4) For the purposes of this section:
court proceedings in relation to a takeover bid or proposed takeover bid:
(a) means any proceedings before a court in relation to:
(i) an action taken or to be taken as part of, or for the purposes of, the bid or the target’s response to the bid; or
(ii) a document prepared or to be prepared, or a notice given or to be given, under this Chapter; and
(b) includes:
(i) proceedings to enforce an obligation imposed by this Chapter; or
(ii) proceedings for the review of a decision, or the exercise of a power or discretion, under this Chapter; or
(iii) proceedings for the review of a decision, or the exercise of a power or discretion, under Chapter 6C in relation to securities of the target of a takeover bid during the bid period; and
(iv) proceedings under Part 2F.1A for leave to bring, or to intervene in, proceedings referred to in paragraph (a) or subparagraph (b)(i), (ii) or (iii).
This is not limited to proceedings brought under this Chapter or this Act but includes proceedings under other Commonwealth and State or Territory laws (including the general law).
659B(5) Nothing in this section is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.’
395 Section 659C provides:
‘659C Court proceedings after end of bid period
(1) If:
(a) an application is made to the Panel for a declaration under section 657A that particular conduct amounts to, or leads to, circumstances that are unacceptable; and
(b) the Panel refuses to make the declaration; and
(c) a Court finds after the end of the bid period that the conduct contravenes this Act;
the Court’s powers under this Act in relation to the conduct are limited to the following:
(d) the Court may:
(i) determine whether a person is guilty of an offence against this Act because they engaged in or were involved in the conduct; and
(ii) impose a penalty if the person is found guilty;
(e) the Court may:
(i) determine whether a person who engaged in, or was involved in, the conduct contravened a provision of this Act; and
(ii) order the person to pay an amount of money to another person (whether by way of damages, account of profits, pecuniary penalty or otherwise);
(f) the Court may make an order under section 1318 or 1322 in relation to the conduct.
This subsection does not confer power or jurisdiction on a court that it does not have apart from this subsection.
(2) Without limiting subsection (1), the only kind of remedial order that the Court may make is one that requires the person to pay money to another person.’ (original emphasis)
396 Section 1318 of the Corporations Act 2001 empowers the Court, in any civil proceeding, to excuse a person (as defined in s 1318(4)) from liability of the kind in s 1318(1)). Section 1322 of the Corporations Act 2001 provides that a proceeding under the Act is not invalidated because of any procedural irregularity unless the Court otherwise declares.
397 Internal Panel reviews of a decision of the Panel are dealt with in s 657EA. A Court hearing proceedings in relation to a decision of the Panel may refer the decision to a Panel for review (s 657EB Corporations Act 2001).
398 The Explanatory Memorandum to the Bill which introduced the major changes (Corporate Law Economic Reform Program Bill 1998 (Cth)) included the following:
‘Dispute resolution
7.14 Takeover disputes are currently principally determined by the courts, with the jurisdiction of the Corporations and Securities Panel (Panel) depending upon referrals from ASIC. There have been only three matters brought before the Panel since it was established in 1991.
7.15 Target companies often resort to litigation in hostile takeover bids, sometimes for tactical reasons. This can result in bids being delayed and, where a final hearing cannot be held within the bid period, the courts having to decide between disrupting the bid by granting an injunction without the benefit of full evidence and allowing the bid to proceed even though it may later be found to be defective.
7.16 To meet these concerns, a reconstituted Panel will take the place of the courts as the principal forum for resolving takeover disputes under the Corporations Law, with the exception of civil claims after a takeover has occurred and criminal prosecutions. This will allow takeover disputes to be resolved as quickly and efficiently as possible by a specialist body largely comprised of takeover experts, so that the outcome of the bid can be resolved by the target shareholders on the basis of its commercial merits. Other benefits of an effective Panel for dispute resolution include the minimisation of tactical litigation and the freeing up of court resources to attend to other priorities.’
(Emphasis added.)
Effect of legislative changes
399 There are at least four significant differences between the present legislative provisions and those considered by the High Court in Precision Data Holdings 173 CLR 167.
(1) Unlike its 1989 counterpart, the Corporations Act 2001 expressly empowers the Panel to make a declaration of unacceptable circumstances based upon a contravention of the Act (s 657A(1) Corporations Act 2001) being a contravention of the provisions of Ch 6, Ch 6A, Ch 6B or Ch 6C (s 657A(2)(b) Corporations Act 2001). Chapter 6A deals with compulsory acquisitions and buy-outs. Chapter 6B deals with rights and liabilities in relation to Ch 6 and Ch 6A matters. Chapter 6C deals with information about ownership of listed companies and managed investment schemes.
(2) The current provisions widen the list of those who can make an application for declarations and orders pursuant to s 657C(2) of the Corporations Act 2001 to include not only ASIC but also the bidder, the target or any other person whose interests are affected by the relevant circumstances.
(3) Division 3 of Pt 6.10 of the current provisions in the Corporations Act 2001 has significantly restricted the role of the courts during and after the bid period and, in particular, has removed the power to grant positive and negative orders to remedy a breach of the law other than orders for the payment of money.
(4) Section 657D(2) of the Corporations Act 2001 is more specific in relation to the kinds of orders that can be made by the Panel than the equivalent provision of the Corporations Act 1989 (s 734). Particularly, it can make remedial orders and it can make orders as to the costs of the parties to the proceedings. Such orders are similar to the orders that may be made by a court pursuant to Pt 9.5 of the Corporations Act 2001 and the general law (cf Mikasa 127 CLR 617).
400 Thus, an interested party can now apply to the Panel for a declaration of unacceptable circumstances based upon a contravention of the Act – in particular, a contravention of Ch 6, Ch 6A, Ch 6B or Ch 6C. If successful, the party can then make an application to the Panel for orders of a positive and negative kind to protect its interests affected by the contravention of the Act, including an order directing a person to do or to refrain from doing a specified act and the costs of the proceedings before the Panel. That interested party cannot obtain injunctions to the same effect from a court against any of the private parties involved in any dispute relating to a takeover, whether during or after the takeover period. As a deliberate legislative policy, the Panel is now concerned with the ‘adjudication of disputes’ about ‘existing obligations’ to a degree not seen in Precision Data Holdings 173 CLR 167. Section 659AA of the Corporations Act 2001, and the Explanatory Memorandum, could not be clearer. The Panel is the main forum for resolving disputes about a takeover bid.
401 The effect of the current provisions is to transfer the power to make orders to enforce a statute from the courts to another body otherwise than in conformity with Ch III of the Constitution. It is one thing to remove the courts from the enforcement of prohibitions created by statute. It is quite another to transfer that function to a body which is not a court. It is also another thing to preclude courts from exercising jurisdiction under the general law as is provided expressly in s 659B(4) and impliedly in s 659C of the Corporations Act 2001. The exclusion, found in s 657D(2), on the Panel making orders directing a person to comply with a requirement of Ch 6, Ch 6A, Ch 6B or Ch 6C (s 657D(2)), does not avoid the conclusion that the positive and negative orders which can be made have the effect of directing compliance as well as remedying the effect of contravention (see Dietrich and Middleton“Statutory Remedies and Equitable Remedies”(2006) 28 Australian Bar Review 136). The orders made in this case are a good illustration of the identity of Panel orders with orders that might have been made by a court. This is a radically different scheme from that considered by the High Court in Precision Data Holdings 173 CLR 167.
402 The avowed intent of Div 3 of Pt 6.10 of the Corporations Act 2001 is to make the Panel the main forum for resolving disputes about a takeover bid until the bid period has ended. The effect of s 659B is that, leaving aside any possible operation of s 75 of the Constitution, the Panel is the sole forum for resolving the defined disputes during the bid period between private parties, notwithstanding that such disputes might otherwise be within the jurisdiction of Federal, State and Territory courts. Because of s 659B and s 659C of the Corporations Act 2001 the powers of courts having jurisdiction over a dispute to grant remedies for a contravention of the Act are significantly curtailed. As already noted, in particular, there is no power to make positive or negative injunctions. It can also be noted that s 659C authorises exercise of the powers of the Court only where the Panel refuses to make a declaration of unacceptable circumstances (s 659C(1)(b) Corporations Act 2001).
403 Parliament can create statutory rights and establish a body to administer the legislation including the resolution of issues arising thereunder. Licensing schemes are typical examples. Privative clauses may also have a role to play in relation to such schemes (cf Plaintiff S157/2002 v The Commonwealth 211 CLR 476). The effect upon the jurisdiction of the ordinary courts of Div 3 of Ch 6 of the Corporations Act 2001 goes well beyond that situation. The judicial vacuum is filled with the capacity of the Panel to resolve disputes between private parties by remedies including those of a kind that might be ordered by a court.
404 There was considerable emphasis in the submissions for those supporting the validity of s 657A and s 657D upon the lack of ability on the part of the Panel to enforce its own orders and the related point that the decisions of the Panel are subject to collateral challenge at the point of enforcement. These are difficult arguments to sustain in light of the decision of the High Court in Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245. The legislation considered in that case provided for the Human Rights and Equal Opportunity Commission to hold an inquiry into a complaint of unlawful conduct prohibited as racial discrimination by the Racial Discrimination Act 1975 (Cth). Section 25Z of that Act provided as follows:
‘(1) After holding an inquiry, the Commission may:
(a) dismiss the complaint the subject of the inquiry; or
(b) find the complaint substantiated and make a determination, which may include any one or more of the following:
(i) a declaration that the respondent has engaged in conduct rendered unlawful by this Act and should not repeat or continue such unlawful conduct;
(ii) a declaration that the respondent should perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant;
(iii) a declaration that the respondent should employ or re-employ the complainant;
(iv) a declaration that the respondent should pay to the complainant damages by way of compensation for any loss or damage suffered by reason of the conduct of the respondent;
(v) a declaration that the respondent should promote the complainant;
(vi) a declaration that the termination of a contract or agreement should be varied to redress any loss or damage suffered by the complainant;
(vii) a declaration that it would be inappropriate for any further action to be taken in the matter.
(2) A determination of the Commission under subsection (1) is not binding or conclusive between any of the parties to the determination.’
405 The Commission was required to lodge any determination made in a Registry of the Federal Court. The Registrar was required to register it and thereupon the determination had effect as if it were an order made by the Federal Court (s 25ZAB(1) Racial Discrimination Act 1975). The respondent to a determination could, within 28 days after registration, apply to the Federal Court for a review (s 25ZAB(5) Racial Discrimination Act 1975). The Court could review all issues of fact and law. New evidence could not be adduced without leave. After reviewing the determination the Court could ‘make such orders as it thinks fit (including a declaration of right)’. The Court could also confirm the determination (s 25ZAC Racial Discrimination Act 1975).
406 In Brandy 183 CLR 245, following an inquiry, the determination of the Commission found a complaint substantiated and declared that the following acts or courses of conduct should be performed:
‘(1) that the Plaintiff do apologise to the Third Defendant, the form of the apology being annexed to the determination;
(2) that the Plaintiff do pay the sum of $2 500 to the Third Defendant by way of damages for the pain, humiliation, distress and loss of personal dignity suffered by the Third Defendant;
(3) that ATSIC do take disciplinary action against the Plaintiff, in relation to the conduct which he perpetrated against the Third Defendant;
(4) that ATSIC do apologise to the Third Defendant in relation to the handling of his complaint, the form of the apology being annexed to the determination;
(5) that ATSIC do pay the sum of $10,000 to the Third Defendant by way of damages for the pain, humiliation, distress and loss of personal dignity suffered by the Third Defendant.’
That determination was lodged with the Federal Court and registered whereupon the plaintiff sought a review of the determination. He separately brought proceedings in the High Court challenging the validity of various sections of the Racial Discrimination Act 1975 on the basis that they provided for the exercise of judicial power otherwise than in conformity with Ch III of the Constitution.
407 Whilst enforceability of decisions was accepted as an important indicia of judicial power, it was said not to be essential to the exercise of judicial power that the Tribunal should be called upon to execute its own decision (Deane, Dawson, Gaudron and McHugh JJ 183 CLR at 268–269; Mason CJ, Brennan and Toohey JJ 183 CLR at 256–257). The procedure of registration and consequent enforceability was consistent with judicial power being exercised, notwithstanding the express power of review by the Federal Court (Mason CJ, Brennan and Toohey JJ 183 CLR at 260–264; Deane, Dawson, Gaudron and McHugh JJ 183 CLR at 269–271).
408 It is to be noted that, in the legislation considered in Brandy 183 CLR 245, it was expressly provided that a determination of the Commission was not binding or conclusive between any of the parties to the determination (s 25Z(2) Racial Discrimination Act 1975). Thus, it was said that it was only because of the enforcement provisions that it could be concluded that there was the exercise of judicial power (Deane, Dawson, Gaudron and McHugh JJ 183 CLR at 269). The relevant provisions of the Corporations Act 2001, (s 657F making contravention of an order an offence of strict liability and s 657G relating to court orders to secure compliance), provide stronger methods of enforcement than were present in Brandy 183 CLR 245. In the present case, the Declaration and Orders made by the Panel are binding by force of statute.
409 Neither method of enforcement of the Panel’s orders, criminal (s 657F Corporations Act 2001) and civil (s 657G Corporations Act 2001), provide for a review of the Panel’s decisions. The criminal offence of contravening a Panel order is an offence of strict liability. Indeed, not to comply with an order directing payment of costs (s 657D(2)(d) Corporations Act 2001) would be an offence of strict liability. The civil enforcement provision may be invoked where a person contravenes or proposes to contravene a Panel order but only allows the Court to make an order ‘to secure compliance with the Panel’s order’. Where the Panel has made a declaration of unacceptable circumstances because of a contravention of Ch 6, Ch 6A, Ch 6B or Ch 6C, the Court cannot, on a prosecution under s 657F or a proceeding under s 657G, inquire into the correctness of the Panel’s decision. The contravention must be assumed by the Court. The Court does not exercise judicial power in determining whether there was, in fact, a contravention of s 606 where a criminal or civil proceeding to enforce the Panel’s orders is brought before the Court, although there may be an exercise of judicial power in making the enforcement orders.
410 The argument as to the availability of a collateral challenge to validity is elusive except where the statute expressly provides for an appeal or for judicial review. Otherwise, it is essentially circular. Such a challenge would always be available where an administrative body was invested with judicial power. In Brandy, Mason CJ, Brennan and Toohey JJ said (183 CLR at 258–259):
‘So, when A alleges that he or she has suffered loss or damage as a result of B's unlawful conduct and a court determines that B is to pay a sum of money to A by way of compensation, there is an exercise of judicial power. The determination involves an exercise of such power not simply because it is made by a court but because the determination is made by reference to the application of principles and standards “supposed already to exist” (Prentis v Atlantic Coast Line (1908) 211 US 210 at 226, per Holmes J). And the determination is binding and authoritative in the sense that there is what has been described as an immediately enforceable liability of B to pay A the sum in question (See Rola Co (1944) 69 CLR 185 at 199 per Latham CJ). Consequently, even if the determination in such a case were to be made by an administrative tribunal and not by a court, the determination would constitute an exercise of judicial power, although not one in conformity with Ch III of the Constitution.’
(Emphasis added)
411 The concept of a challenge on administrative law grounds to a decision of a body which is, in fact, exercising judicial power is odd. The possibility of such a challenge would not affect the nature of the function being performed or the power exercised any more than did the existence of a power of review in Brandy 183 CLR 245. As pointed out in that case, it is not necessary that a review take place or, in the present circumstances, that there be a collateral challenge. Furthermore, a collateral challenge on administrative law grounds could fail, leaving the enforceable determination intact. Once it is recognised that judicial power of a kind which cannot be conferred upon an administrative body has been conferred upon an administrative body, then the manner in which that power is to be exercised is irrelevant to the constitutional question.
412 As this case illustrates, the Panel, as an essential part of the process of declaration, decides between contending parties whether there has been a contravention of the Corporations Act 2001, with reference to past events and conduct and with the application of law to those events and conduct. It is not to the point that the decision to declare or not to declare may involve other factors involving the public interest and what might be called policy. While it is true that the role of policy considerations was a factor in the Court’s decision in Precision Data Holdings, (see 173 CLR at 190–191) the mere existence of such discretion should not be regarded as determinative of power being non-judicial (Fencott v Muller (1983) 152 CLR 570 at 608). Where, as here, a finding of contravention is the basis or a basis for the declaration then the remedy granted by the Panel is typical of remedies now available to courts, both in the general equitable jurisdiction pursuant to Pt 9.5 of the Corporations Act 2001 and under a range of other statutes, eg, Trade Practices Act 1974 (Cth), Contracts Review Act 1980 (NSW), where discretionary considerations of a similar kind are relevant to the grant of relief and where similar remedial orders may be made. The decision in Mikasa 127 CLR 617 is relevant to the present provisions.
413 Counsel for the Attorney-General relied upon the opinion of the primary judge that the effect of the Panel’s inquiry was to create a new set of rights, just as in Precision Data Holdings 173 CLR 167. Even if that were correct, the High Court held in Precision Data Holdings 173 CLR at 191, that the fact that the object of the determination is to bring into existence a new set of rights and obligations is not always an answer to the claim that the function is one which entails the exercise of judicial power. Because the Panel has under the Corporations Act 2001 the power to determine whether a breach of the law has been committed and, if so, has power to make an appropriate remedial order is enough to indicate that more than the creation of new rights is involved. We shall return later to consider the alternative basis for the Declaration that did not, in terms, depend upon a finding of contravention of a provision of the Act.
414 It is worth noting a number of other factors which support the proposition that the powers are judicial in nature, even if they would not be sufficient to uphold that proposition on their own. The Panel is required to adhere to the rules of procedural fairness, (s 195(4) Australian Securities and Investment Commission Act 2001); decisions must be given in writing and reasons must be published (s 657A(4) and (6) and s 657D(1), (3) and (4) Corporations Act 2001); the proceeding can be dismissed as frivolous or vexatious (s 658A Corporations Act 2001); a finding of fact recorded in an order by the Panel or a written statement of reasons for an order of the Panel is proof of the fact in the absence of evidence to the contrary (s 658B Corporations Act 2001); the Panel has rule making powers (s 658C Corporations Act 2001); and there is immunity from suit (s 197 Australian Securities and Investment Commission Act 2001). Such ‘requirements are indicative of judicial process’ (Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board (2006) 151 FCR 466 at [38]).
415 Counsel for the Attorney-General relied upon the decision in Attorney-General (Cth) v Breckler (1999) 197 CLR 83. The legislation considered in that case (the Superannuation (Resolution of Complaints) Act 1993 (Cth)) has little in common with the legislation under consideration here. It provided a fairly typical example of administrative review with the review body standing in the shoes of the decision maker. Furthermore, s 20 of the Superannuation (Resolution of Complaints) Act 1993 provided:
‘(1) The Tribunal cannot deal with a complaint if a proceeding has been begun in a court about the subject matter of the complaint and the proceeding has not been finally disposed of.
(2) If, after a complaint has been made to the Tribunal, a proceeding is begun in a court about the subject matter of the complaint, the Tribunal cannot deal with the complaint until the proceeding is finally disposed of.’
Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said (197 CLR at 107):
‘The effect of s 20 is to remove the ground for complaint such as that in Victoria v Australian Building Construction Employees' and Builders Labourers' Federation ((1982) 152 CLR 25) that such activities by the Tribunal would, to the extent to which they created a risk of interfering, or involved a tendency to interfere, with the administration of justice, constitute a contempt of court. Section 20 also recognises the intention stated in s 350 of the Supervision Act that the regulatory scheme not operate to the exclusion of the law of a State or Territory to the extent that that law is capable of operating concurrently with it.’
416 Counsel for the Attorney-General relied upon the decision of the Full Court in Albarran (151 FCR 466). The question in that case turned upon s 1292 of the Corporations Act 2001, relating to the suspension or cancellation of the registration of a person as a liquidator. Section 1292(2) provides:
‘The Board may, if it is satisfied on an application by ASIC for a person who is registered as a liquidator to be dealt with under this section that, before, at, or after the commencement of this section:
(a) the person has:
(i) contravened section 1288; or
(ii) ceased to be a resident of Australia; or
(d) that the person has failed, whether in or outside this jurisdiction, to carry out or perform adequately and properly:
(i) the duties of a liquidator; or
(ii) any duties or function required by Australian law to be carried out or performed by a registered liquidator;
or is otherwise not a fit and proper person to remain registered as a liquidator;
by order, cancel, or suspend for a specified period, the registration of the person as a liquidator.’
417 In the two cases involved in that decision (Gould and Albarran) the Board had made findings based on s 1292(2)(d). The Court held that the termination or suspension of a statutory right to practice created by statute and regulated for the protection of the public was not the exercise of exclusive judicial power that could not be conferred upon an administrative body (151 FCR at [42]–[50]). It is significant that the Court said (151 FCR at [44]):
‘Even if the Board were to conclude that there had been a failure to carry out and perform relevant duties and functions adequately and properly, and even if it be the fact that that failure constituted a contravention of the law, the punishment of that contravention would be a matter for an entirely different tribunal, namely, a court exercising an entirely different species of power, namely, judicial power.’
The orders were not of the kind made by courts and the courts were not excluded from the field.
Conclusions on the constitutional point
418 In our opinion, the analysis of the present provisions establishes that Precision Data Holdings 173 CLR 167 does not govern the present case. It cannot be concluded that a declaration by the Panel pursuant to s 657A(2)(b) of the Corporations Act 2001 is only a basis for determining what rights and obligations should be created in the future and that an order pursuant to s 657D of the Corporations Act 2001 creates those rights and obligations. Section 657A(1) of the Corporations Act 2001 is invalid insofar as it purports to give the Panel jurisdiction to declare circumstances to be unacceptable circumstances which constitute a contravention of a provision of the Corporations Act 2001. Section 657A(2)(b) of the Corporations Act 2001 is invalid and cannot be saved. It follows that the ground for the Declaration, based upon a finding of contravention of s 606 of the Corporations Act 2001 by Alinta, cannot stand. It also follows that the orders pursuant to s 657D of the Corporations Act 2001 cannot stand. The making of the Declaration and orders was an exercise of exclusive Commonwealth judicial power by an administrative body in contravention of Ch III of the Constitution.
419 Two grounds were identified in the Panel’s reasons as the basis for the Panel’s Declaration and Orders, one pursuant to s 657A(2)(b) of the Corporations Act 2001 and the other pursuant to s 657A(2)(a) of the Corporations Act 2001. Each is supported by APL on this appeal.
420 The next question is whether the primary judge was correct in finding that the alternative ground for the Declaration (pursuant to s 657A(2)(a) of the Corporations Act 2001) was independent of, and not affected by, the Panel’s finding of contravention of s 606 of the Corporations Act 2001. The Panel said it considered the issues independently. Counsel for Alinta pointed to some textual indications that cast some doubt as to that. However, none was clear. The most significant was to the repeated reference to Alinta ‘having its foot on’ the AGL parcel of units in APL leading to the repeated aggregation of the 10% purchase with the 30% parcel to equate to 40% of the APL units. The finding that Alinta had an interest in the AGL parcel of units in APL as a result of the MIA was an important integer of the finding of contravention of s 606 of the Corporations Act 2001. The phrase ‘having its foot on’ appears to be deliberately imprecise. Even if considered as a finding of control over the units, it does not amount to a finding of contravention of the Corporations Act 2001 as such. Although that debate illustrates the unreality of addressing the issues raised by s 657A of the Corporations Act 2001 without forming a view as to compliance with the Corporations Act 2001, it does not establish that the Panel went beyond consideration of s 657A(2)(a) in this part of the reasons for the decision.
421 However, the problem does not lie in the reasons given by the Panel for each ground. It may be accepted, for the purposes of argument, they were kept separate and an error in the reasons as to ground one would not affect the reasons for ground two. The real issue is whether the Declaration was the result of the cumulative effect of both grounds. The effective part of the Declaration was as follows:
‘Unacceptable Circumstances
5. The Panel finds that the Acquisitions constituted, or gave rise to, a contravention of section 606 of the Corporations Act.
6. The Panel also finds that the Acquisitions, when considered in the context of the relief granted by ASIC, the forthcoming Schemes and the existing holding of 83,668,630 units in APT by AGL, have, or are likely to have, an effect on the control or potential control of APT.
7. The Panel considers that it is not against the public interest to make a declaration of unacceptable circumstances in relation to the Acquisitions and the affairs of APT.
8. The Panel has considered the desirability of the acquisition of control of units in APT taking place in an efficient, competitive and informed market, and other purposes of the Takeovers Chapters of the Corporations Act as set out in section 602 of the Corporations Act. Having considered these issues, the Panel has decided to make a declaration under 657A of the Corporations Act that the Acquisitions are unacceptable circumstances having regard to the fact that the Acquisitions constituted, or gave rise to, a contravention of section 606 of the Corporations Act, and the effect of the Acquisitions on the control or potential control of APT.’
(Emphasis added)
That is consistent with the summary at the commencement of the reasons of the review Panel which said:
‘The Panel decided to make a declaration of unacceptable circumstances on the basis:
(a) of the effect of the Acquisitions on the control or potential control of APT; and
(b) that the Acquisitions caused, or gave rise, to a breach of s 606.’
422 In our opinion, there is no escape from the conclusion that the reasoning of the Panel was cumulative upon both findings. The structure of the Declaration was that paragraph 7 followed both paragraphs 5 and 6 and related to both. Paragraph 8 followed paragraph 7 and related to paragraphs 5, 6 and 7. Furthermore, the language of paragraph 8 is expressly cumulative. The finding of contravention of s 606 was expressly identified as an operative basis for the making of the Declaration and the consequent Orders. Thus, neither the Declaration nor the Orders can survive the constitutional invalidity of that finding and must be set aside.
423 There is a question as to whether the matter should be remitted to the Panel to be decided according to law which, in theory, would require consideration of the circumstances without reference to any contravention by Alinta of s 606 of the Corporations Act 2001. Therefore, it is appropriate to consider the validity of s 657A and s 657D of the Corporations Act 2001, apart from s 657A(2)(b) of the Corporations Act 2001, as, if invalid, there would be no basis for remission to the Panel. The correctness of the opinion of the primary judge in favour of validity thus needs to be considered. The question is whether the principal changes to the regime, other than the existence of s 657A(2)(b), since Precision Data Holdings 173 CLR 167 are sufficient to distinguish that decision and invalidate the Declaration and Orders if based upon s 657A(2)(a) or, put another way, to invalidate any part of s 657A or s 657D save for s 657A(2)(b).
424 The scope of the jurisdiction of the Takeovers Panel can be gathered by reading s 657A in the light of s 602 and then considering Ch 6, Ch 6A, Ch 6B and Ch 6C and the nature of the orders that might be made pursuant to s 657D of the Corporations Act 2001. The consequences of the changes to the statutory regime since Precision Data Holdings 173 CLR 167 can be illuminated by practical analysis.
425 Chapter 6 contains a prescriptive set of provisions governing takeovers, creating many positive and negative duties of a detailed nature. For example, Div 2 in Pt 6.5 relating to the takeover procedure deals with the bidder’s statement. Requirements as to content and form are imposed. If a serious contravention is alleged by a target company it could, except for s 659B and s 659C of the Corporations Act 2001, seek urgent injunctions and orders to restrain and remedy the breach under the general law (Mikasa 127 CLR 617) and pursuant to ss 1324, 1324A and 1324B of the Corporations Act 2001. Instead, the only available option is to apply to the Panel pursuant to s 657C (s 657C(2)(b) Corporations Act 2001). The alleged contravention would form the basis of the application. However, upon the hypothesis being considered, this would be dealt with by the Panel pursuant to s 657A(2)(a). In a case such as that, the Panel would need to make a decision as to whether there had or had not been contravention of Ch 6 Pt 5 Div 2 of the Corporations Act 2001 in order to deal with the application made to it. The absence of a curial forum makes it inevitable that cases where interested parties allege actual or threatened contravention of the myriad of legal requirements relating to takeovers during the bid period will be brought to the Panel and will require a decision as to whether or not there was a contravention of the Corporations Act 2001 and, if so, the orders to be made to prevent or remedy the breach. In this statutory setting, with such detailed prescriptions, this would achieve the statutory objective of making the Panel the main forum for resolving disputes about a takeover bid until the bid period has ended (s 659AA Corporations Act 2001). Indeed, in the case of interested parties, apart from the public bodies referred to in s 659B of the Corporations Act 2001, the Panel is the only forum for resolving disputes about a takeover bid until the bid period has ended, including disputes as to contravention of the Corporations Act 2001.
426 Some applications to the Panel might not involve an allegation of contravention of the Corporations Act 2001. It may be conceded by an applicant that there is no contravention but it be contended that the circumstances are otherwise unacceptable. It is not likely that there would be many such cases, bearing in mind the close statutory regulation of takeovers, and there is likely to be an even smaller number of such cases where a Panel could be persuaded to take remedial action notwithstanding the fact that there is no allegation of contravention of the Corporations Act 2001. Leaving that situation aside, it is difficult to see how a Panel could consider the issue of whether circumstances relating to a takeover are unacceptable without a finding as to whether the conduct in question was lawful or not. In a situation where there is a plethora of legal requirements, it is unrealistic to expect that the acceptability of circumstances could be judged without a finding as to whether the conduct in question was or was not in contravention of those requirements. The lawfulness or otherwise of the conduct said to be unacceptable could not be simply a neutral factor.
427 It will be seen that, even leaving aside s 657A(2)(b) of the Corporations Act 2001, each of the other principal departures from the scheme considered in Precision Data Holdings 173 CLR 167 that we have identified earlier, plays a part in achieving the result that the Panel is likely to be called upon to settle existing inter-partes disputes as to the application of the statute to the circumstances. Firstly, the interested parties can now make application to the Panel rather than only the then equivalent of ASIC. Inter private party disputes are now within the jurisdiction of the Panel. Secondly, the courts are removed from settling private party disputes during the bid period and the orders that can be made thereafter are restricted. Thirdly, the orders that can be made by the Panel are more specific than hitherto and are appropriate to the grant of relief, including costs, that might be granted by a court arising out of contravention of the Corporations Act 2001. Indeed, express provision is made for ‘remedial orders’. In short, assuming no s 657A(2)(b) of the Corporations Act 2001, the Panel could receive an application from an interested party alleging that circumstances were unacceptable by reason of a contravention of the Corporations Act 2001, decide that there was a contravention and then make orders to remedy that contravention of precisely the same nature as might have been made by a court in the absence of s 659B and s 659C of the Corporations Act 2001.
428 A provision that permits the Panel to decide existing inter-partes disputes about the application of the law to the facts and then make remedial orders is invalid for the same reason as s 657A(2)(b) is invalid, subject to the operation of s 15A of the Acts Interpretation Act 1901 (Cth). The difficulty of applying that section to a law expressed in general terms is illustrated by contrasting the opinions in Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 of Mason CJ at 335 and Gaudron J (agreed in by Deane J) at 366–367 with those of Brennan J at 339–340, Dawson J at 347–348, Toohey J at 354–355 and McHugh J at 371–372. See also the discussion by Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ in State of Victoria v Commonwealth of Australia (Industrial Relations Act Case) (1996) 187 CLR 416 at 502-503. The problem is not solved by recognising that some applications to the Panel might not involve the exercise of judicial power. Nor is it solved by accepting that legislation could be framed so as to provide a legitimate role for the Panel.
429 In our view, it is not necessary to decide that difficult question in order to determine if the matter should be remitted to the Panel. If the matter were remitted to the Panel, it could hardly ignore the finding of a contravention of s 606 of the Corporations Act 2001 as found by this Court. The declaration proceeding is to be remitted to the primary judge to consider the relief to be granted in relation to the contraventions of the Corporations Act 2001 that have been found in that proceeding. In our opinion, that is the appropriate forum for consideration of relief in the particular circumstances of this case. The Court will have to consider the contravention that is relevant to the Panel proceeding and another contravention by another party in relation to the same parcel of units. The broader approach is to be preferred. The powers and discretions available to the Court under Pt 9.5 of the Corporations Act 2001 are ample to deal with the relief that ought to be granted. Thus, it is neither necessary nor desirable that the matter be remitted to the Panel.
430 There is no necessity for us to deal with the other grounds of challenge to the validity of the Panel’s decisions pursuant to the notice of appeal and notice of contention as they are to be set aside.
431 We should add that if judicial power was exercised by the Panel it was not suggested that it was not Commonwealth judicial power.
Conclusion on the appeal in the judicial review proceeding
432 In the judicial review appeal, we would allow the appeal and set aside the orders of the primary judge and in lieu thereof make a declaration that s 657A(2)(b) of the Corporations Act 2001 is invalid, and set aside the declaration and orders of the Panel. We would order that the third respondent pay the appellant’s costs of the appeal and of the proceeding below.
433 The orders and declaration which we propose should be made, subject to hearing the parties are:
ORDERS:
1. The appeal be allowed.
2. The order made by the primary judge on 20 October 2006 dismissing the application be set aside and in lieu thereof:
DECLARATION:
Section 657A(2)(b) of the Corporations Act 2001 (Cth) is invalid.
FURTHER ORDERS:
3. The declaration made by the first respondent on 20 September 2006 that the acquisitions by the appellants are unacceptable circumstances having regard to the fact that the acquisitions constituted or gave rise to a contravention of s 606 of the Corporations Act 2001, and the effect of the acquisitions on the control or potential control of Australian Pipeline Trust be quashed.
4. The orders made by the first respondent on 24 September 2006 be set aside.
5. The third respondent pay the appellants’ costs of the proceeding before the primary judge.
6. The third respondent pay the appellant’s costs of the appeal.
434 If the parties cannot agree the proposed orders that reflect these reasons the parties should bring in their own short minutes of order.
| I certify that the preceding three hundred and thirty-five (335) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Gyles and Lander. |
Associate:
Dated: 20 April 2007
| NSD 2123 of 2006
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| Counsel for the Appellant: | Mr P M Wood and Ms K M Richardson |
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| Solicitor for the Appellant: | Chang Pistilli and Simmons |
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| Counsel for the First, Second, Fourth and Fifth Respondents: | Mr A J Sullivan QC with Mr J R Lockhart |
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| Solicitor for the First, Second, Fourth and Fifth Respondents: | Blake Dawson Waldron |
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| Counsel for the Third Respondent: | The Third Respondent did not appear |
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| NSD 2079 of 2006 |
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| Counsel for the First and Second Appellants: | Mr J Sheahan SC with Mr J Kirk |
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| Solicitor for the First and Second Appellants: | Blake Dawson Waldron |
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| Counsel for the First Respondent: | Mr B Katekar |
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| Solicitor for the First Respondent: | Baker McKenzie |
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| Counsel for the Second Respondent: | The Second Respondent did not appear |
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| Counsel for the Third Respondent: | Mr P M Wood and Ms K M Richardson |
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| Solicitor for the Third Respondent: | Chang, Pistilli and Simmons |
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| Counsel for the Attorney-General (Commonwealth) Intervening: | Ms M A Perry QC with Ms E A Collins |
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| Solicitor for the Attorney-General (Commonwealth) Intervening: | Australian Government Solicitor |
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| Date of Hearing: | 7, 8 December 2006 |
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| Date of Judgment: | 20 April 2007 |
