FEDERAL COURT OF AUSTRALIA

Cemex Australia Pty Ltd v Takeovers Panel [2009] FCAFC 78

CORPORATIONS – application for review of declaration of unacceptable circumstances and orders made by Takeovers Panel – whether Panel bound to consider whether conduct amounted to a contravention of the Corporations Act 2001 (Cth) – whether Panel erred in construction of bidder’s statement and later documents – whether there was evidence before the Panel to justify a finding that the market was misinformed – whether Panel could make orders affecting group of shareholders in absence of evidence as to individual loss by shareholders – whether orders involved an impermissible delegation of power to the Australian Securities and Investment Commission – appeal dismissed.

Australian Securities and Investment Commission Act 2001 (Cth), s 11(2)(a)

Corporations Act 2001 (Cth), ss 602, 657A, 657D, 670A, 1041H

Corporations Amendment (Takeovers) Act 2007 (Cth)

Attorney-General (Cth) v Alinta Ltd Limited (2008) 233 CLR 542 followed

Australian Broadcasting Tribunal v Bond(1990) 170 CLR 321 referred to

Australian Pipeline Ltd v Alinta Ltd (2006) 237 ALR 158 referred to

Australian Pipeline Ltd v Alinta Ltd (2007) 159 FCR 301 referred to

Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 referred to

Australian Securities and Investments Commission v Edensor Nominees Pty Limited (2001) 204 CLR 559 referred to

Australian Securities and Investments Commission v Yandal Gold Pty Ltd (1999) 32 ACSR 317 referred to

Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 referred to

Ex parte Forster; Re University of Sydney [1963] SR (NSW) 723 referred to

Federal Commissioner of Taxation v St Helens (ACT) Pty Ltd (1981) 146 CLR 336 referred to

Glencore International AG v Takeovers Panel (2006) 151 FCR 77 referred to

Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 referred to

Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 referred to

Re Reference under Section 11 of the Ombudsman Act 1976 for an Advisory Opinion; Ex parte Director-General of Social Services (1979) 2 ALD 86 referred to

Explanatory Memorandum to the Corporate Law Economic Reform Program Bill 2008 (Cth)

Aronson, Dyer and Groves, Judicial Review of Administrative Action (4^th Ed, 2009)

CEMEX AUSTRALIA PTY LTD (ACN 122 401 405) v SIMON MCKEON, ELIZABETH ALEXANDER AND JOHN O'SULLIVAN IN THEIR CAPACITY AS MEMBERS OF THE TAKEOVERS PANEL and AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

NSD 1764 of 2008

RYAN, JACOBSON AND FOSTER JJ

30 JUNE 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the costs of the second respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using the Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

INTRODUCTION AND OVERVIEW

1                     On 12 August 2007, the Takeovers Panel (“the Panel”) made a declaration of unacceptable circumstances under s 657A of the Corporations Act 2001 (Cth) (“Corporations Act”) in relation to a takeover bid made by the appellant, CEMEX Australia Pty Ltd (“CEMEX”), for the whole of the issued shares in Rinker Group Limited (“Rinker”).  The Panel published reasons in support of that declaration on 20 September 2007.

2                     The offer price stated in CEMEX’s bidder’s statement was US$13.00 in cash for each Rinker share. CEMEX subsequently increased its offer price to US$15.85 per share.  The announcement of CEMEX’s increased offer included a statement that:-

The offer is CEMEX’s best and final offer, in the absence of a superior proposal.

3                     The bidder’s statement provided that the cash consideration was subject to reduction by the amount of any dividend declared and paid to an accepting Rinker shareholder during the offer period.

4                     Approximately one month after CEMEX announced its “best and final offer”, it issued a further announcement which included a statement that Rinker shareholders who were entitled to a final dividend of A$0.25 per share (which had been announced by Rinker after the increase in the offer price) would retain that dividend.  CEMEX’s announcement included the following statement:-

CEMEX has confirmed it will not exercise its right to deduct that dividend from its Offer price of $US 15.85 per share. 

5                     The unacceptable circumstances found by the Panel were that in making its “best and final” statement, CEMEX was telling the market that it would not improve its offer price (in the absence of a superior proposal) and that allowing shareholders to retain the dividend was an improvement in the offer consideration.

6                     In making its declaration of unacceptable circumstances, the Panel formed the opinion that the circumstances were unacceptable having regard to the matters referred to in s 657A(2)(a) of the Corporations Act, or otherwise unacceptable having regard to the matters referred to in s 657A(2)(b). 

7                     Importantly, the Panel expressly declined to consider whether CEMEX’s conduct amounted to unacceptable circumstances under s 657A(2)(c) on the ground that it gave rise to a contravention of Chapters 6, 6A, 6B or 6C of the Corporations Act.  Those chapters include the prohibition on misleading or deceptive statements in takeover offer documents expressed in s 670A of the Corporations Act. 

8                     No doubt the Panel took this course deliberately because its decision predated the decision of the High Court in Attorney-General (Cth) v Alinta Limited (2008) 233 CLR 542, which determined that a declaration of unacceptable circumstances under the provision now contained in s 657A(2)(c) did not constitute an exercise of the judicial power of the Commonwealth.  At the time this matter was before the Panel, the contrary view prevailed: see Australian Pipeline Ltd  v Alinta Ltd (2007) 159 FCR 301.

9                     Nevertheless, the course adopted by the Panel throws up an essential question which arises on this appeal.  This is because CEMEX contends that, in declining to consider whether CEMEX’s conduct contravened the prohibition on misleading and deceptive statements in s 670A and s 1041H of the Corporations Act, the Panel failed to take into account a relevant consideration: see Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 39-40.

10                  CEMEX sought judicial review of the Panel’s decision under s 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth)(“ADJR Act”)and s 39B(1A)(c) of the Judiciary Act 1903 (Cth).  The primary judge, Stone J, dismissed the application on 23 October 2008.  CEMEX appeals from her Honour’s orders.  There are five grounds of appeal which repeat the substance of the attack made on the Panel’s decision and orders at first instance.

GROUNDS OF APPEAL

11                  The first ground of appeal is, as we have said, that the Panel was bound to consider whether CEMEX’s conduct amounted to a contravention of the Corporations Act, and that its failure to do so was a failure to take into account a relevant consideration, or was otherwise an improper exercise of power within the meaning of sub-ss 5(1)(e) and 5(2) of the ADJR Act.

12                  The second ground of appeal is that the Panel erred in law within the meaning of s 5(1)(f) of the ADJR Act in its construction of the bidder’s statement and certain later documents, including the “best and final offer”.

13                  The substance of this ground is that CEMEX contends that in the bidder’s statement, or the bidder’s statement when read together with subsequent documents, CEMEX had reserved to itself a discretion as to whether or not it would receive the benefit of any Rinker dividend which might be declared.

14                  The third ground of appeal arises from the Panel’s finding that the market was misinformed.  CEMEX contends that there was no evidence or other material from which the Panel could have been satisfied that the market was misinformed in any relevant way.

15                  Indeed, CEMEX submits that the evidence was to the contrary because it points to evidence which shows that the market was aware that CEMEX might permit Rinker shareholders to retain the benefit of the dividend. 

16                  The fourth ground of appeal arises from orders made by the Panel that CEMEX pay to each shareholder who sold Rinker shares between the date of the “best and final offer” and the date of the announcement that CEMEX would forego its entitlement to the Rinker dividend, the sum of A$0.25 per share.

17                  The substance of this ground is that the Panel took no steps to satisfy itself that each affected shareholder suffered a loss of A$0.25 per share by reason of the unacceptable circumstances. 

18                  Accordingly, CEMEX contends that the Panel failed to satisfy itself that the Rinker shareholders’ rights or interests were affected by the circumstances which the Panel had found to be unacceptable.

19                  The fifth ground of appeal arises from orders made by the Panel which purported to confer power on ASIC to determine whether or not Rinker shareholders who submitted claim forms were entitled to be paid the sum of A$0.25 per share. CEMEX contends that this was an impermissible delegation of power.

THE LEGISLATION

20                  Chapter 6 of the Corporations Act deals with takeovers.  The purposes of the Chapter are set out in s 602 which enshrines four principles that are often referred to as the Eggleston Principles.  These principles are fundamental to the approach taken by the Panel because it found that the conduct of CEMEX amounted to unacceptable circumstances having regard to the purpose stated in s 602.

21                  Section 602 provides:-

Purposes of Chapter

The purposes of this Chapter are to ensure that:

(a)        the acquisition of control over:

(i)         the voting shares in a listed company, or an unlisted company with more than 50 members; or

(ii)        the voting shares in a listed body; or

(iii)       the voting interests in a listed managed investment scheme;

takes place in an efficient, competitive and informed market; and

(b)        the holders of the shares or interests, and the directors of the company or body or the responsible entity for the scheme:

(i)         know the identity of any person who proposes to acquire a substantial interest in the company, body or scheme; and

(ii)        have a reasonable time to consider the proposal; and

(iii)       are given enough information to enable them to assess the merits of the proposal; and

(c)        as far as practicable, the holders of the relevant class of voting shares or interests all have a reasonable and equal opportunity to participate in any benefits accruing to the holders through any proposal under which a person would acquire a substantial interest in the company, body or scheme; and

(d)        an appropriate procedure is followed as a preliminary to compulsory acquisition of voting shares or interests or any other kind of securities under Part 6A.1.

22                  Section 657A states:-

Declaration of unacceptable circumstances

(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.

(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 that the Panel is satisfied the circumstances have had, are having, will have or are likely to have 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 otherwise unacceptable (whether in relation to the effect that the Panel is satisfied the circumstances have had, are having, will have or are likely to have in relation to the company or another company or in relation to securities of the company or another company) having regard to the purposes of this Chapter set out in section 602; or

(c)        are unacceptable because they:

(i)         constituted, constitute, will constitute or are likely to constitute a contravention of a provision of this Chapter or of Chapter 6A, 6B or 6C; or

(ii)        gave or give rise to, or will or are likely to 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).

(4)        The Panel must give an opportunity to make submissions in relation to the matter to:

(a)        each person to whom a proposed declaration relates; and

(b)        each party to the proceedings; and

(c)        ASIC.

(5)        The declaration must be in writing and published in the Gazette.

(6)        As soon as practicable, the Panel must give each person to whom the declaration relates:

(a)        a copy of the declaration; and

(b)        a written statement of the Panel's reasons for making the declaration.

(7)        This section does not require the Panel to perform a function, or exercise a power, in a particular way in a particular case.

23                  Section 657D confers power on the Panel to make orders if it has declared circumstances to be unacceptable.  The section provides relevantly:-

Orders that Panel may make following declaration

(1)        The Panel may make an order under subsection (2) if it has declared circumstances to be unacceptable under section 657A. It must not make an order if it is satisfied that the order would unfairly prejudice any person. Before making the order, the Panel must give:

(a)        each person to whom the proposed order would be directed; and

(b)        each party to the proceedings; and

(c)        ASIC;

an opportunity to make submissions to the Panel about the matter

(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)        if the Panel is satisfied that the rights or interests of any person, or group of persons, have been or are being affected, or will be or are likely to be affected, by the circumstances – protect those rights or interests, or any other rights or interests, of that person or group of persons; 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.

24                  Section 670A is contained in Chapter 6B.  It is not necessary to set out the terms of this section.  It is sufficient for present purposes to say that under s 670A, it is an offence for a person to make a misleading or deceptive statement in a bidder’s statement or in a takeover offer document, if the statement is materially adverse from the point of view of the holder of securities.

25                  Section 1041H(1) is contained in Chapter 7 of the Corporations Act.  It prohibits misleading or deceptive conduct in relation to a financial product or financial service.  The effect of s 1041H(3) is that misleading or deceptive conduct in relation to takeover documents is excluded from the prohibition contained in s 1041H(1).

THE BIDDER’S STATEMENT

26                  CEMEX is a wholly owned subsidiary of CEMEX S.A.B. de C.V., a global building solutions company that produces, distributes and markets cement, ready-mix concrete, aggregates and other building materials in more than 50 countries.

27                  On 30 October 2006, CEMEX lodged its bidder’s statement with ASIC in accordance with s 633(1) of the Corporations Act.  CEMEX’s offer was to acquire all of the issued shares in Rinker and certain instruments known as American Depositary Shares (“ADS”).  The ADS are not relevant to this proceeding.

28                  The terms of CEMEX’s offer were recorded in section 8 of the bidder’s statement which was headed “Offer terms”.  The relevant terms of that section were:-

8.1       Offer

(a)       Bidder offers to acquire all your Rinker Securities on the terms and subject to the conditions set out in this Section 8.

(b)       The consideration offered for each of your Rinker Shares is US$13.00 in cash and for each of your Rinker ADSs is US$65.00 in cash.  You may elect to receive the consideration due to you in US dollars or Australian dollars – see Section 8.8(d).  The consideration under this Offer is subject to reduction in accordance with Section 8.8(e).

(c)       If Bidder acquires your Rinker Securities under this Offer, it will also be entitled to all Rights in respect of your Rinker Securities.

29                  Section 8.8 of the bidder’s statement was headed “Payment of Consideration”.  Section 8.8(e) was headed “Rights”.  It provided:

If Bidder becomes entitled to any Rights as a result of your acceptance of this Offer, it may require you to give to Bidder all documents necessary to vest title to those Rights in Bidder, or otherwise to give Bidder the benefit or value of those Rights.  If you do not do so, or if you have received or are entitled to receive (or any previous holder of your Rinker Securities has received or is entitled to receive) the benefit of those Rights, Bidder will be entitled to deduct the amount (or an amount equal to the value, as reasonably assessed by Bidder including by reference to US dollar to Australian dollar exchange rates prevailing at the time) of those Rights from any consideration otherwise payable to you under this Offer.  If Bidder does not, or cannot, make such a deduction, you must pay that amount to Bidder. 

30                  In section 9 of the bidder’s statement, the term “Rights” was defined as follows:

Rights means all accretions, rights and benefits of whatever kind attaching to or arising from the Rinker Securities directly or indirectly at or after the date of this Bidder’s Statement (including all dividends and all rights to receive them and rights to receive or subscribe for shares, notes, bonds, options or other securities or entitlements declared, paid or issued by Rinker or any subsidiary of Rinker).

31                  The offer and any contract resulting from its acceptance were governed by the law of New South Wales. 

THE “BEST AND FINAL OFFER”

32                  On 10 April 2007, CEMEX sent a media release to the Australian Securities Exchange (“ASX”) in Sydney announcing an increase in its offer price for Rinker. The announcement was made at 10.59am on that day and it was followed by a trading halt in Rinker shares.  The trading halt remained in place until 12 noon on 10 April 2007.

33                  The relevant parts of the media release were as follows:-

CEMEX ANNOUNCES INCREASED RECOMMENDED OFFER FOR RINKER

MONTERREY, MEXICO, April 9, 2007 – CEMEX, S.A.B. de C.V. (NYSE: CX) announced today that it had reached and signed an agreement with Rinker Group Limited (“Rinker”) (ASX: RIN, NYSE ADR: RIN) under which it would raise its offer price to US$15.85 per share in cash, and that the Rinker Board of Directors had unanimously agreed to recommend to its shareholders that they accept the offer at this price, in the absence of a superior proposal.

… CEMEX has agreed to make no adjustment to the offer price for the dividend paid by Rinker in December of 2006.  [Emphasis added.]

The total enterprise value of the transaction, including Rinker’s debt, is approximately US$15.3 billion, equivalent to A$18.7 billion.  The offer is CEMEX’s best and final offer, in the absence of a superior proposal.  [Emphasis added.]

… 

A Supplementary Bidder’s Statement reflecting the full extent of the agreement with Rinker, and the resulting Revised Offer, will be filed in the coming days.

34                  The reference to CEMEX’s agreement to make no adjustment to the offer price for the dividend paid by Rinker is of importance because CEMEX relies upon this to support its contention as to the proper construction of the offer terms and its submission that the market was not misinformed.

35                  The media release concluded with the following statement:-

In addition, during the Restriction Period, Rinker must not pay a dividend, other than annual and half yearly dividends consistent with past practice, (provided that this does not prejudice the Bidder’s rights under clause 8.8(e) of the Bidder’s Statement to adjust the revised offer price in respect of any such dividend) or undertake a buy-back, capital return or other payment to shareholders without the consent of the Bidder and without prejudice to the Bidder’s rights under clause 8.8(e) to make adjustments to the revised offer price, as appropriate. 

36                  CEMEX also relies on this statement because it is said to go to the question of whether the market was misinformed.  CEMEX submits that this statement was, in effect, a reminder to the market that CEMEX had a discretion to waive its entitlement to any dividend declared by Rinker during the offer period.

EVENTS FOLLOWING THE MEDIA RELEASE

37                  At 11.16am on 10 April 2007, during the period of the trading halt, CEMEX filed with the ASX a notice of variation of the takeover offer in accordance with s 650D(1) of the Corporations Act. 

38                  The notice of variation referred to the increase in the offer price from US$13.00 to US$15.85.  It also stated:-

CEMEX Australia will not exercise its rights under clause 8.8(e) of the Offer terms in respect of the interim dividend of A$0.16 per Rinker Share declared by Rinker with a record date of 24 November 2006 but may exercise those rights in respect of any subsequent dividend.

39                  During the morning of 10 April 2009, Rinker issued its comments on CEMEX’s increased offer and put out a news release.  In both its comments and the news release, Rinker referred to the percentage increase over the original offer price, calculated on the assumption that CEMEX was entitled to deduct the US$0.13 interim dividend from the offer price. 

40                  On 17 April 2007, CEMEX sent a fourth supplementary bidder’s statement to the ASX. The statement referred to CEMEX’s announcement of its increased offer made on 10 April 2007.  The statement included the following:

In addition, Bidder will permit Rinker Securityholders who accept the Offer to retain the whole of the interim dividend of A$0.16 per ordinary share (which had a record date of 24 November 2006) previously paid by Rinker to its Securityholders on 11 December 2006, without any reduction to the higher price payable to those who accept the Offer.

Attached to this Statement is the formal notice that gives effect to the increase in Offer price and Bidder’s undertaking not to exercise its rights under Section 8.8(e) of the Bidders Statement in relation to the interim dividend.

41                  On 18 April 2007, CEMEX sent a fifth supplementary bidder’s statement to the ASX.  The statement included a summary of the offer and other important information set out in question and answer form.  It included the following:-

42                  On 27 April 2007, Rinker released to the ASX its full year financial results for the financial year ended 31 March 2007.  It also issued a News Release stating, inter alia, that the directors declared a final dividend of A$0.25 per ordinary share with a record date of 8 June 2007, payable on 3 July 2007. 

43                  The New Release continued by saying:

Shareholders should note that under the terms of CEMEX’s takeover offer for Rinker, CEMEX has the right to deduct the amount of the dividend (or an amount equal to its value, as reasonably assessed by CEMEX) from the offer price payable to accepting shareholders who have or will receive that dividend.

44                  On the same day, 27 April 2007, the ASX released Rinker’s Target’s Statement on the ASX announcement platform.  The statement included the remarks which we have set out in the previous paragraph. 

45                  On 7 May 2007, CEMEX announced to the ASX that it would extend its offer to acquire Rinker shares until 8 June 2007.  The announcement included a statement that Rinker shareholders would be entitled to retain the final dividend.  The statement was as follows:-

CEMEX also announced that Rinker shareholders who are entitled to the final dividend of A$0.25 per share (announced by Rinker on April 27, 2007) will retain that dividend, irrespective of when they accept the CEMEX Offer.  CEMEX has confirmed it will not exercise its right to deduct that dividend from its Offer price of $US 15.85 per share.

46                  The announcement also stated that CEMEX would reduce its 90% minimum acceptance condition to a 50% minimum.  In addition the announcement said that CEMEX understood that Rinker’s largest shareholder, Perpetual Group, would accept CEMEX’s offer. 

47                  On 13 June 2007, ASIC applied to the Panel for a declaration of unacceptable circumstances.  On 12 July 2007, an initial Panel made a declaration.  CEMEX sought a review of the declaration and orders by a review Panel.

48                  The review Panel made its declaration and orders on 12 August 2007.  The review Panel’s decision was the subject of the application for judicial review before the primary judge.

THE PANEL’S REASONS

49                  The Panel’s reasons for its finding of unacceptable circumstances were set out at [39]-[42] as follows:-

Conclusion on unacceptable circumstances

39.       The review Panel has concluded, like the initial Panel, that CEMEX made a best and final statement in its 10 April announcement that it would not improve its Offer consideration (in the absence of a superior proposal). CEMEX’s statement was not qualified in a clear, unambiguous and proximate way except as to a superior proposal. There was no superior proposal.

40.       CEMEX’s best and final statement informed the market that CEMEX would not improve its Offer consideration (in the absence of a superior proposal) and would have been treated by investors as an assurance (upon which they were entitled to rely) that it would not do so. The market expects that best and final statements will be just that and will not be departed from.

41.       In its 7 May announcement CEMEX allowed Rinker shareholders to retain the final dividend that Rinker had declared. By doing so, it improved its Offer consideration and departed from and therefore acted in a manner that was inconsistent with the assurance in its best and final statement.

42.       The review Panel did not accept CEMEX’s submissions (among others) that:

(a)        under the terms of its Offer it had a discretion whether or not it would deduct the amount of a dividend paid to accepting Rinker shareholders, or,

(b)        that it had qualified its 10 April announcement by reserving the discretion.

50                  The Panel went on to say at [46] that as a result of the announcement of 7 May 2007, the market “had been misled” between 10 April 2007 and 7 May 2007 because it had been told that there would not be an improved offer in the absence of a superior proposal.  The Panel then said that “accordingly”, the market was not efficient because it was operating on information about CEMEX’s intention that was departed from, having been assured that it would not be departed from.

51                  That conclusion, and the other conclusions stated in [46], were expressed in terms of the principles stated in s 602 of the Corporations Act.   That is to say, the market was not efficient for the reason stated above, and was misinformed because it had been told that CEMEX’s offer price would not be improved.

52                  The Panel was of the view that the statement that the offer was CEMEX’s “best and final offer” fitted the description of such statements in ASIC’s Regulatory Guide 25 (“RG 25”) which is entitled “Takeovers: false and misleading statements”.

53                  The Panel referred at [50]-[53] to a number of paragraphs in RG 25 which stated that, if a market participant intends to reserve the right to depart from its last and final bid, it must qualify its statement in clear, express language.

54                  The Panel’s reasons for reaching the view that CEMEX did not have a discretion under section 8.8(e) of the bidder’s statement to allow it to decide whether or not it would take the benefit of any dividend were set out in [64]-[67] as follows:-

64.       In the review Panel’s view it is quite clear that CEMEX did not have the discretion for which it contends. Nor does the review Panel consider that Rinker shareholders would have understood it as having such a discretion. Put simply, under its best and final offer CEMEX was entitled to the final dividend. Any giving up of that entitlement was an improvement of its Offer and therefore a clear departure from, and action inconsistent with, the statement of 10 April that the then Offer was CEMEX’s best and final offer.

65.       The review Panel agrees with the initial Panel that the discretion conferred by clause 8.8(e) determined the way in which CEMEX could take the benefit of existing or future Rights it was entitled to, and was not a discretion to elect whether or not to deduct Rights (such as dividends) from the Offer price. CEMEX would be expected to enforce its rights and anyway the ability not to enforce a right is not the same as the discretion CEMEX is contending it has.

66.       Shareholders must have regard to the terms of the Offer as well as to the terms of any announcements but having regard to clause 8.8(e) would not enlighten shareholders that the best and final statement of CEMEX was qualified to allow the Offer consideration to be improved by allowing them to keep the benefit of a future dividend.

67.       In support of its view, the review Panel notes that on 10 April 2007 CEMEX lodged a notice of variation that included its decision to permit Rinker shareholders to retain the benefit of the interim dividend. Section 650B(1)(g) provides that a bidder may vary the offers made under the bid to improve the consideration offered by giving shareholders a right to retain a dividend (for shares to which rights to accrued dividends are attached). Section 650D sets out what a bidder must do to vary offers under an off market bid. The review Panel considers that CEMEX followed usual practice by including in its notice of variation on 10 April the improved Offer consideration that resulted by allowing Rinker shareholders to retain the benefit of the interim dividend. As the initial Panel noted, it accords with market practice and common understanding that allowing the benefit of a dividend to be retained improves the Offer consideration. The review Panel thinks it is also a variation.

55                  At [71] of its reasons, the Panel set out the concluding paragraph of CEMEX’s announcement of 10 April 2007 which we have reproduced at [35] above.  The Panel did not consider this to be a clear reservation of a discretion.  The Panel also said at [72]:-

In any event, it was too remote from the best and final statement. The review Panel does not accept that the ‘fine print’ can take precedence over the ‘headline’.

56                  The Panel also addressed a submission made by CEMEX that there was an understanding among some market participants that CEMEX had a discretion whether or not to retain the dividend.  Before considering the evidence on that question, the Panel said at [74]:-

However, it should be emphasised that it is for the review Panel to assess how the market and investors would interpret CEMEX’s best and final offer statement of 10 April 2007. That assessment is outlined in these reasons.

57                  The conclusions reached by the Panel on the evidence were set out at [76] as follows:-

76.       In the review Panel’s opinion, one research report supports CEMEX’s contention, the others do not. As ASIC pointed out in its submissions, of the 7 reports submitted by CEMEX:

(a)        one indicated a view that CEMEX could allow Rinker shareholders to retain the benefit of the final dividend;

(b)        two indicated a view that CEMEX had waived the right to allow Rinker shareholders to retain the benefit of future dividends; and

(c)        the others did not specifically address the matter.

58                  The Panel also dealt with evidence which was adduced by CEMEX from Mr Andrew Campbell Clarke, the Managing Director of Citigroup’s Investment Banking Division in Australia, who had been one of CEMEX’s advisers on the takeover. 

59                  Mr Clarke gave evidence of a number of meetings and conversations with Rinker shareholders, including Perpetual Group.  The Panel dealt with this at [81] as follows:-

81.       The review Panel did not doubt Mr Clarke. However, in the review Panel’s opinion, the language of the affidavit indicates that the conversations were not confirmation that CEMEX had a discretion under the Offer, or whether CEMEX reserved any discretion in the 10 April announcement. Nor are they confirmation that the investors believed that CEMEX had the discretion it now claims, or that the best and final statement was qualified in that respect. Even if those institutional investors did believe that, that is not evidence of a general market understanding.

60                  CEMEX also relied, on the question of the market understanding, on an article published in The Australian newspaper on 1 May 2007.  The article stated that an option available to CEMEX to “add value” might be to allow accepting shareholders to keep the final dividend. 

61                  However, the Panel did not consider that the article reflected the true position with respect to CEMEX’s discretion, or the market’s general understanding. 

62                  The Panel stated at [100] that it was satisfied that CEMEX’s departure from its 10 April 2007 statement had an effect on the control or potential control of Rinker.  This statement of satisfaction was expressed in terms which conformed with s 657A(2)(a) and (b) of the Corporations Act.

63                  In coming to this view, the Panel took into account the increased level of acceptances after the 7 May announcement.  It compared the post 7 May level, which culminated with 95.66% acceptances at the close of the offer on 16 July 2007, to the very low level of acceptances which preceded the “best and final offer”.  The Panel recognised that there may have been other influences, including CEMEX dropping its minimum acceptance condition to 50% and the Perpetual Group’s acceptance of the offer.  However, the Panel was of the view, at [102], that the Perpetual Group’s acceptance was largely a result of the “improved offer consideration”.

64                  The Panel was also satisfied that CEMEX’s “departure from, and acting inconsistently with, its best and final statement” had an effect on the acquisition of control of Rinker taking place in an efficient and informed market.  It took into account the level of trading in Rinker shares and concluded, at [108], that:-

… When CEMEX departed from its best and final statement, this meant that the market between the 10 April announcement and the 7 May announcement had been inefficient, because it had been misled as to the status of CEMEX’s offer.

65                  The Panel also considered the market prices of Rinker shares before and after the 7 May announcement.  It noted that the closing price on that day was $0.34 higher than the previous trading day and concluded, at [112], that the most important factor in the price increase was the improved offer consideration.

66                  Before making its declaration, the Panel considered, as it was required to do by s 657A(2), whether a declaration would be contrary to the public interest.  It rejected CEMEX’s submission that a declaration would be contrary to the public interest by reason of the absence of an allegation of a contravention of the Corporations Act.  The Panel said at [115](b):-

… The review Panel did not consider contraventions of the law to be a factor in this case.  It considered that the circumstances are unacceptable in accordance with sections 657A(2)(a) and (b).  The review Panel considers that truth in takeovers is a fundamental policy consideration in takeovers regulation (per Summit) and is reflected in the policy of the takeovers provisions.  The policy in RG 25 is an articulation of a number of aspects of the principles in section 602.  This is not placing policy above the law.

67                  In determining what orders to make under s 657D of the Corporations Act, the Panel observed that its powers are wide.  It said at [123] that its orders are not intended to “compensate”, as a court might do.  Rather, it said that an order was appropriate to protect the rights or interests of affected persons.

68                  In particular, the Panel was of the view that the unacceptable circumstances resulted in the market for Rinker shares being “misled” as to the status of CEMEX’s final offer.  It observed that, following amendments to s 657D(2)(a), it may make orders with respect to a group of persons without the need to address individuals within the group: see [126]-[127].

69                  The Panel considered that CEMEX was not unfairly prejudiced by an order for compensation.  It was of the view that Rinker shareholders who sold their shares between the 10 April and 7 May announcements lost the opportunity to trade in an efficient and informed market.  The Panel considered, at [132] and [134], that the “most logical and best estimate” of the value of that lost opportunity was the amount of the final dividend.

70                  The Panel also observed, in support of this approach, that the market factored in the amount of the $0.25 final dividend when told that the accepting shareholders would be allowed to retain it: see [137].

THE PANEL’S DECLARATION AND ORDERS

71                  The relevant parts of the review Panel’s declaration are to be found at [17]-[19] of the Declaration of Unacceptable Circumstances as follows:-

Circumstances unacceptable

17.       It appears to the Panel that the circumstances referred to above (Circumstances) are unacceptable having regard to:

(a)       the effect that the Panel is satisfied that the Circumstances have had, are having, or are likely to have, on :

(i)         the control or potential control of Rinker; or

(ii)        the acquisition or proposed acquisition by CEMEX of a substantial interest in Rinker; or

(b)        the purposes of Chapter 6 of the Corporations Act 2001 (Cth) (Act) as set out in section 602 of the Act.

18.       The Panel considers that it is not against the public interest to make a declaration of unacceptable circumstances in relation to the Circumstances and the affairs of Rinker.

19.       The Panel has had regard to the matters in section 657A(3) of the Act, but has not had regard to whether the Circumstances constitute, will constitute or are likely to constitute or give rise to a contravention of Chapters 6, 6A, 6B or 6C of the Act.

Under section 657A of the Act, the Takeovers Panel declares that the Circumstances constitute unacceptable circumstances in relation to the affairs of Rinker.

72                  The Panel’s orders under s 657D were set out in 45 numbered paragraphs.  The essential effect of the orders was that CEMEX was to pay each “affected shareholder” who lodged a claim form, the sum of $0.25 per share for the net number of Rinker shares disposed of by the shareholder between 10 April 2007 and 7 May 2007.

73                  The orders which dealt with the role of ASIC in determining whether a person was entitled to payment were contained in orders 14 to 16 as follows:-

DISPUTE AS TO ENTITLEMENT TO PAYMENT

14.       CEMEX may refer a claim form to ASIC within 2 weeks of CEMEX or the ISP receiving the claim form (whichever is earlier). CEMEX must provide to ASIC, with the referred claim form, the reasons it considers that the person submitting the claim form may not be entitled to the payment set out in the claim form because:

(a)        CEMEX considers that the person submitting the claim form is not an Affected Shareholder;

(b)        Special Circumstances do not apply;

(c)        CEMEX disputes some or all of the details, supporting documents or evidence submitted in or with the claim form; or

(d)        CEMEX considers that payments have already been made or claimed for in respect of some or all of the Rinker shares claimed for.

15.       If CEMEX refers a claim form to ASIC under Order 14, ASIC shall within 2 weeks of receipt of that claim form make a determination, after consultation with CEMEX if ASIC considers it desirable, as to whether or not the person submitting the claim form is entitled to be paid in accordance with the Orders and if necessary, for how many Rinker shares.

16.       If ASIC is unable to make a determination under Order 15, it shall refer the claim form to the Panel within 2 weeks of receipt by ASIC of that claim form for decision. 

THE PRIMARY JUDGE’S REASONS

74                  Her Honour rejected CEMEX’s submission that the Panel was required to have regard to whether CEMEX’s conduct gave rise to a contravention of Chapters 6, 6A, 6B or 6C of the Corporations Act.  The essence of her reasons may be found at [37] as follows:-

37.       CEMEX’s submissions advocate a mechanistic approach to the interpretation of s 657A(3)(a).  This is not what the section requires.  An obligation to have regard to Chapter 6 does not require the decision maker to consider whether there has been a contravention of each and every applicable provision.  The task of the Panel was to consider whether, as ASIC alleged, unacceptable circumstances had arisen.  Section 657A(3)(a) sets out the matters that it is mandatory for the Panel to consider.  The question of whether there has been a contravention of Chapters 6, 6A, 6B, 6C is not included as a mandatory matter.  The fact that s 657A(1) specifically provides that it is not necessary for there to be a contravention of a provision of the Act, indicates that if the Panel considered CEMEX’s conduct resulted in unacceptable circumstances irrespective of there being a contravention, it was not necessary for it to consider if there had been a contravention.  It is clear that the fact of a contravention would be highly relevant to the question of whether the circumstances should be characterised as “unacceptable”.  If, however, such circumstances exist irrespective of a contravention, it is not necessary for the Panel to consider that issue.

75                  In coming to this view, her Honour referred to the observations of Gleeson CJ in Alinta at [6] as to the purposes of the regulatory framework established by Chapter 6.  Her Honour also pointed out that in Glencore International AG v Takeovers Panel (2006) 151 FCR 77 at [135], Emmett J observed that s 657A(1) recognises that the conduct of a takeover may be inconsistent with an efficient, competitive and informed market even where there has been no contravention of the Corporations Act. 

76                  The primary judge considered that CEMEX’s contentions as to the proper construction of the 10 April announcement were a challenge to the Panel’s findings of fact.  In any event, her Honour did not accept the construction for which CEMEX contended.  She considered that the 7 May 2007 announcement offered Rinker shareholders an “additional sweetener” to CEMEX’s best and final offer: see [42].

77                  Her Honour did not accept that clause 8.8(e) of the bidder’s statement gave CEMEX a discretion to decide whether or not to take the benefit of the dividend.  Nor did she consider that the other documents on which CEMEX relied cast doubt on the construction of that clause.

78                  In rejecting CEMEX’s submission that s 657D(2) was not enlivened on the ground that no individuals had been shown to have suffered financial loss, the primary judge referred to the amendments to that sub-section which were enacted in 2007.

79                  Her Honour considered that the “en globo” assessment of loss was consistent with the express words of s 657D(2)(a) which authorise the Panel to make an order if it is satisfied that the rights of “a group of persons” have been affected.  Her Honour was of the view that there was a sufficient causal connection for the purposes of that sub-section because persons who sold Rinker shares in the relevant period did so in a market that was misinformed.  They had therefore lost the opportunity to sell upon the basis of information that the offer consideration might be improved: see [49]-[51].

80                  The primary judge gave several reasons for rejecting CEMEX’s submission that the mechanism for processing claims in orders 14-16 of the Panel’s orders involved an impermissible delegation of power.  The principal reason was that ASIC was not given power to determine conclusively whether a person was an affected shareholder.

PRELIMINARY OBSERVATIONS: THE ROLE OF THE PANEL – COMMERCIAL EXPERTISE AND SUPERVISORY FUNCTIONS

81                  It seems to us that in considering the issues raised on the appeal, it is necessary to bear in mind the role of the Panel and its place in the resolution of takeover disputes.

82                  The Panel’s history, constitution and role were referred to by the primary judge at [8]-[10] of her reasons.  Further explanation may be found in the Explanatory Memorandum to the Corporate Law Economic Reform Program Bill 2008 (Cth) which introduced the relevant provisions and the decision of the High Court in Alinta. 

83                  The Explanatory Memorandum to the Corporate Law Economic Reform Program Bill stated at [7.14] to [7.16] that, subject to certain exceptions, the Panel would take the place of the courts as the principal forum for resolving takeover disputes and that this would allow disputes to be resolved quickly and efficiently by a specialised body largely composed of takeover experts.

84                  In Alinta, Gleeson CJ, Kirby J and Hayne J placed considerable emphasis on the specialist nature of the Panel and the public interest considerations which underpin its role.

85                  Gleeson CJ said at [6] that the matters to which the Panel may have regard, understood in the light of the purposes stated in s 602, are aspects of a decision-making process different from that which is involved where a litigant seeks an injunction from a court to restrain a contravention of the Corporations Act.  His Honour continued by saying that the constitution of the Panel, the way in which it is required to approach its task, and the nature of the considerations according to which it acts, all point against a conclusion that it is engaged in a judicial process.

86                  Kirby J observed at [45] that the Parliament had determined that due to the nature of takeover disputes, such disputes require prompt resolution by decision-makers with substantial commercial experience who can look:-

… not only at the letter of the Act but also at its spirit, and reach outcomes according to considerations of practicality, policy, economic impact, commercial and market factors and the public interest.

87                  Hayne J said at [88]-[90] that the task of the Panel under s 657A is to create new rights and obligations as between those who are affected by a takeover bid.  In doing so, the Panel is to take into account policy considerations and the purposes of Chapter 6 as set out in s 602 so that:-

… as explained earlier, the requirement that the Panel take into account any policy considerations that it considers relevant (s 657A(2)), in deciding whether to make or not make a declaration, coupled with the obligation to have regard to the matters identified in s 657A(3)(a) and the power to have regard to any other matters it considers relevant (s 657A(3)(b)) reinforce the view that the Panel’s task is better described as the creating of new rights and obligations rather than the quelling of a controversy about contravention of the Corporations Act.

88                  Crennan and Kiefel JJ also placed emphasis on the requirement under s 657A(3) that in exercising the power, the Panel must have regard to the purposes of Chapter 6, and in particular, the principles of maintaining a well-informed, efficient and competitive market as stated in s 602 of the Corporations Act: see at [165].

89                  Gummow J agreed with Hayne J, Crennan and Kiefel JJ: see at [9].

FIRST GROUND: FAILURE TO CONSIDER WHETHER CONDUCT GAVE RISE TO A CONTRAVENTION

90                  Mr Jackman SC, who appeared for CEMEX, made two preliminary observations which appeared initially to have some force.  However, on close examination, we have come to the view that they cannot be supported.

91                  First, Mr Jackman submitted that the obligation of the Panel under s 657A(3)(a) to have regard to the purpose, amongst others, of ensuring that takeovers take place in an informed market, necessarily imports a requirement that the Panel have regard to whether misleading statements have been made in contravention of ss 670A and 1041H. 

92                  In this regard, he pointed to the findings of the Panel that the market had been “misinformed” and “misled”: see in particular at [46], [108], and [126] of the Panel’s reasons, to which we referred above.

93                  Mr Jackman also drew attention to the fact that the Panel’s conclusions were informed in part by reference to RG 25: see the Panel’s reasons at [50]-[53] and [115(b)].  As he pointed out, RG 25 is entitled “Takeovers: false and misleading statements”.

94                  Second, Mr Jackman called in aid the observations of Gyles and Lander JJ in the Full Court in Alinta (2007) 159 FCR 301 at [426].  Their Honours strongly emphasised that in a situation where there is a plethora of legal requirements, it is unrealistic to expect that the acceptability of circumstances can be judged without a finding as to whether the conduct was in contravention of those requirements.

95                  Mr Jackman recognised, of course, that those remarks could not be relied upon as a matter of stare decisis, but he submitted that they were highly persuasive as statements of good commonsense and commercial logic: cf Federal Commissioner of Taxation v St Helens (ACT) Pty Ltd (1981) 146 CLR 336 at 410.

96                  However, the short answer to those submissions is that they are not supported by the express language of s 657A or by the purpose or policy of the provision as explained by the High Court in Alinta.

97                  Upon the proper construction of s 657A, the Panel was not bound to consider whether CEMEX’s conduct contravened s 670A or s 1041H of the Corporations Act.  There are four reasons for this.

98                  First, s 657A(1) says in plain terms that the Panel may declare circumstances to be unacceptable “whether or not the circumstances constitute a contravention of a provision of this Act”.

99                  Second, the Panel may only declare circumstances to be unacceptable if one or more of the criteria stated in s 657A(2)(a), (b) or (c) is satisfied.

100               Those three paragraphs of s 657A(2) are disjunctive.  It is sufficient if it appears to the Panel that any one of them is satisfied.  Thus, in the present case, it was open to the Panel to form an opinion, as it did, by reference to (a) and (b), without considering the question of whether CEMEX’s conduct constituted a contravention by reference to (c).

101               Third, the matters to which the Panel must have regard are set out in s 657A(3)(a).  They do not include s 670A, which is contained in Chapter 6B, rather than in Chapter 6.

102               Fourth, what underlies Mr Jackman’s submissions is that the concept of unacceptable circumstances imports a legal issue.  That is contrary to what their Honours said in Alinta.  This can be seen from the passages of the judgments that we have set out above.  Each is equally instructive in pointing to the commercial, policy and public interest factors which inform the determination of whether particular conduct constitutes unacceptable circumstances.

103               Such a determination is not a decision based upon a finding that a legal norm or proscription has been breached.  It is quite different from s 52 of the Trade Practices Act 1974 (Cth) which establishes a norm of conduct: see Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 at [76] per Gummow J.  Rather, it is a “criterion or factum” by reference to which legal norms are imposed and remedies are provided for their enforcement: Alinta at [43] per Kirby J.

104               What is required for a declaration of unacceptable circumstances under para (a) of s 657A(2) is an opinion on the part of the Panel: see Alinta at [162] per Crennan and Kiefel JJ.  The same may be thought to apply to s 657A(2)(b).

105               Even where s 657A(2)(c) is involved, the considerations with which the Panel is concerned are wider than a dispute about a contravention of the Corporations Act; the circumstances are unacceptable under that paragraph “because” they constitute or give rise to a contravention, and public interest factors inform the ultimate decision: see Alinta at [90] per Hayne J; at [162], [167] per Crennan and Kiefel JJ.

106               Finally, as Emmett J said in Glencore International AG v Takeovers Panel (2006) 151 FCR 77 at [135]:-

… Part 6.10 of the Act provides flexibility in the regulation of the acquisition of shares in circumstances where the literal operation of the regulatory regime is either unnecessarily restrictive or ineffective to achieve the object of Ch 6….

SECOND GROUND: CONSTRUCTION OF BIDDER’S STATEMENT

107               A preliminary question arises as to whether the primary judge was correct in finding that CEMEX’s contention as to the proper construction of the bidder’s statement and the later announcements was a challenge to the Panel’s findings of fact, rather than a question of law.  We will address this issue after we deal with the question of construction.

108               There were two essential steps in Mr Jackman’s argument.  The first was that the opening sentence of section 8.8(e) of the bidder’s statement, when read with section 8.1(c), was couched in the language of choice or election.  That is to say, CEMEX “may” require the Rinker shareholder to give it the benefit of the dividends, or it may not.

109               The balance of section 8.8(e) was said to be consistent with this approach and not to detract from the choice or election which was conferred by the word “may” in the opening sentence.

110               The second step in the argument was that, even if there was some doubt as to whether CEMEX had a choice or right of election under section 8.8(e), this was dispelled by the “best and final offer” of 10 April 2007.  That document was said to make it clear that CEMEX did indeed have a discretion to adjust the revised offer price by permitting shareholders to retain the benefit of any dividend declared during the offer period.

111               The “reminder” that CEMEX had that discretion was said to be found in the statement in the 10 April announcement that CEMEX had allowed Rinker shareholders to retain the benefit of the interim dividend declared in December 2006.

112               This was said to have been reinforced by subsequent communications such as the fourth and fifth bidder’s statements which make reference to the exercise of the discretion by CEMEX to permit Rinker shareholders to retain that dividend.

113               There was one further matter to which Mr Jackman referred in his argument.  It was that the concluding paragraph of the announcement of 10 April 2007, which we have set out at [35], stated in express terms that the restriction on payment of dividends imposed on Rinker was without prejudice to CEMEX’s rights under section 8.8(e) to adjust the revised offer price.

114               However, there are two reasons why the construction of the bidder’s statement and later documents for which Mr Jackman contends must be rejected.

115               First, we do not consider that section 8.8(e) of the bidder’s statement, when read with sections 8.1(b) and (c), bears the interpretation propounded by CEMEX.

116               This is because section 8.1(b) imposed upon CEMEX a contractual obligation to pay the stipulated cash consideration, which was subject to a reduction in accordance with section 8.8(e), and section 8.1(c) conferred a contractual entitlement on CEMEX to any dividends declared on the Rinker shares.

117               Section 8.8(e) did not qualify CEMEX’s contractual entitlement to the dividends which arose from section 8.1(c).  It merely provided the machinery for CEMEX to receive the benefit of CEMEX’s contractual entitlement to the dividend.

118               Read as a whole, section 8.8(e) set out the various alternative ways in which CEMEX was to receive the benefit of the dividend.  One of them was to deduct the amount of the dividend (converted from $A to $US) from the cash consideration.

119               Of course a party who has a contractual entitlement to a benefit may decide to give it up or waive the entitlement.  But it would be wrong to describe this as a discretion in the sense suggested by CEMEX.

120               This is because the waiver of a contractual entitlement ordinarily involves a variation.  That is precisely what occurred when CEMEX permitted Rinker shareholders to retain the benefit of the interim dividend.  CEMEX recognised this when it filed a notice of variation on 10 April 2007: see [38] above.

121               Second, there is nothing in the announcements or other documents dated between 10 April 2007 and 7 May 2007 which reserved a discretion to CEMEX to increase the cash component of the offer by permitting shareholders to retain the final dividend.

122               Indeed, the announcement of 10 April 2007 and the further documents on which CEMEX relied made it clear, in our view, that the contractual entitlement to further dividends remained with CEMEX.

123               Whilst most of those documents made reference to CEMEX’s agreement not to reduce the offer price by the amount of the interim dividend, they said in clear terms that CEMEX had retained the contractual entitlement to reduce the cash consideration by the amount of any later dividend.

124               We think that this was sufficiently clear in the “best and final offer” of 10 April 2007, but perhaps the clearest statement is to be found in the fifth supplementary bidder’s statement. That document stated that CEMEX had agreed not to reduce the US$15.85 by the amount of the interim dividend but it went on to say:-

CEMEX has retained the right to reduce the consideration paid under its Offer for any subsequent distributions by Rinker.

125               We reject Mr Jackman’s submission that the concluding paragraph of the 10 April 2007 announcement bears against this construction.  In our view, CEMEX’s rights to “adjust” the revised offer price, as stated in that paragraph, can only be read as a confirmation of its contractual entitlement to adjust downward the cash consideration by reference to dividends paid in the relevant period.

126               The construction which we adopt is consistent with that which was adopted by the Panel and by the primary judge.  Moreover, it is to be borne in mind that the Panel approached the question not merely as one of the proper construction of a document, but as a matter of market practice.  This is clear from the Panel’s reasons at [64]-[67] which we have reproduced above.

127               Thus, the question before the Panel was not merely one of the construction of a document, or its terms.  It was a question of fact, not a question of law: see Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 395.  The primary judge was correct in coming to that conclusion.

THIRD GROUND: THE “NO EVIDENCE” GROUND

128               The primary judge did not deal with this ground, although it was raised below.

129               CEMEX sought to review the Panel’s decision on the ground that there was no evidence or other material to justify it: see ADJR Act, s 5(1)(h).  This was also said to amount to unreasonableness in the Wednesbury sense.

130               The effect of CEMEX’s submissions on this ground of appeal was that there was no evidence to support the findings made by the Panel at [100]-[113] that CEMEX’s departure from its 10 April announcement had any causal effect on control of Rinker or upon the principle of informed markets stated in s 602.

131               CEMEX submitted that the evidence was contrary to the findings made by the Panel.  CEMEX relied, in particular, on the evidence of Mr Clarke which was said to show that the market was well informed of the possibility that CEMEX might permit shareholders to retain the benefit of the final dividend.  Reference was also made to the article in “The Australian” newspaper mentioned in [60] above and to an analyst’s report of 27 April 2007.

132               In Australian Broadcasting Tribunal v Bond(1990) 170 CLR 321 at 358, Mason CJ said that to enliven the ground of review under s 5(1)(h) of the ADJR Act, it is enough to show an absence of material from which the decision-maker could reasonably be satisfied that the particular matter was established.

133               As Mason CJ observed at 358, this approach to the effect of s 5(1)(h) overcomes, to a limited extent, the restrictiveness of the “no evidence” ground at common law.  The authorities were reviewed by Weinberg J in Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at [574] ff.

134               In considering whether there was material from which the Panel could reasonably be satisfied of the effect on the market, and whether it had been misinformed, it is necessary to bear in mind the expertise of the Panel.  We referred earlier to the role of the Panel and the commercial expertise of its members.

135               As Emmett J said at first instance in Australian Pipeline Ltd v Alinta Ltd (2006) 237 ALR 158 at [148], the Panel must engage in speculation when it is endeavouring to determine what would have happened if relevant circumstances did not exist.  He continued:-

Having regard to the panel’s expertise, the making of a judgment as to whether potential bidders would be deterred, is not beyond the panel’s function as contemplated by s 657A(2)(a). 

136               Those observations apply equally to the expertise of the Panel to make a judgment as to the effect on the market.

137               That is not to say that the Panel may, or did in the present case, engage in speculation without any foundation for its conclusion.

138               In particular, there was evidence in the affidavit of Mr Clarke, to which the Panel referred at [102], that the Perpetual Group was one of the largest shareholders in Rinker and that it had indicated to CEMEX that it would accept the offer if, amongst other things, CEMEX permitted accepting shareholders to retain the final dividend.

139               This provided an evidentiary basis for the decision-maker to find that the Perpetual Group’s acceptance was largely a result of the improved offer consideration.  The expertise of the Panel was a sufficient basis for its finding that the Perpetual Group’s acceptance was likely to have encouraged others to do likewise.

140               The same observations may be made with respect to the Panel’s findings about the causal effect on control and the use which it made of the increased level of acceptances and trading volumes after 10 April 2007.

141               Whether or not Mr Jackman was correct in his attack on the factual findings, they are immune from judicial review.  The “no evidence” ground cannot succeed for the reasons referred to above.

FOURTH GROUND: THE COMPENSATION ORDER

142               There were two fundamental propositions which underlay CEMEX’s attack on the compensation order.

143               The first was that the order for payment of $0.25 to each affected shareholder was not authorised by s 657D(2) because no causal link was demonstrated between the unacceptable circumstances and the effect on the rights or interests of the person or group of persons for whose benefit the order was made. 

144               The second was that even if it was correct to approach the matter as one of loss of a chance, the approach taken by the Panel was wrong because it valued the chance as a 100% certainty.

145               The answers to both of these questions are to be found in the proper construction of s 657D(2).  As the primary judge observed, the matter is to be addressed having regard to the amendments to s 657D(2) of the Corporations Amendment (Takeovers) Act 2007 (Cth).

146               The principal effect of the amendment was to introduce the references to the rights or the interests of a “group of persons”.  The primary judge set out at [49] of her reasons for judgment the relevant passage from the Explanatory Memorandum to the Bill.  That passage stated that the amendments ensured that the Panel could make any order it thought appropriate to protect the rights or interests of a person or group of persons affected by the unacceptable circumstances.

147               So much is clear from the language of the subsection, but it does not answer the question of construction raised by CEMEX.  That is because the essence of CEMEX’s submissions was that no individual shareholder was shown to have suffered financial loss as a result of CEMEX’s conduct.  Nor was there any evidence that the shareholders as a group had suffered a loss as a result of that conduct.

148               However, the construction advanced by CEMEX treats s 657D(2) as though it were analogous to a claim for damages under s 82 of the Trade Practices Act.  That is the error which underlies CEMEX’s submissions.

149               Section 657D(2) of the Corporations Act is not concerned with a claim by a person who suffers loss or damage “by conduct of another person”  that was done in contravention of a statutory norm or standard.

150               Rather, s 657D(2) of the Corporations Act confers power on the Panel, if it has made a declaration of unacceptable circumstances, to make an order, including a remedial order, to protect the rights or interests of a person, or group of persons, whose rights or interests have been affected.

151               The power to make orders that are protective of the interests of shareholders is now conferred on the Panel, but it had its inception in the power that was conferred, in similar terms, on the Court to make such an order as a curial remedy under ss 737 and 739 of the Corporations Law.

152               In Australian Securities and Investments Commission v Yandal Gold Pty Ltd (1999) 32 ACSR 317 at [161], Merkel J considered that disgorgement orders were “just” and “protective” of shareholders who suffered detriment as a result of contravening conduct thereby ensuring compensation for that detriment which could not otherwise be satisfactorily measured.

153               It is to be noted that, although the precise scope of the power under those sections was not directly in issue, on appeal to the High Court in Australian Securities and Investments Commission v Edensor Nominees Pty Limited (2001) 204 CLR 559, the Court referred, without adverse comment, to the orders made at first instance: see at [26], [65].

154               The power contained in s 657D seems to us to be a broad one.  It can only be exercised where the Panel has made a declaration of unacceptable circumstances: see s 657D(1).  But subject to that jurisdictional limitation, and the requirement that the Panel must not make an order that would unfairly prejudice any person, the Panel need only be satisfied that the order is appropriate to protect persons whose rights or interests have been affected.

155               No question arises in the present case of the interests of persons who “will be or are likely to be affected”.

156               Here, the jurisdictional prerequisite was satisfied because the Panel made a declaration of unacceptable circumstances.  It did so because it was satisfied that the market had been misinformed about the status of CEMEX’s final offer.  It took this into account in determining what was the appropriate protective order by considering the effect of the unacceptable circumstances on the market and the loss of opportunity thereby occasioned: see the Panel’s reasons at [126].

157               We see no error in that approach.  It bears some similarity to the approach identified by Merkel J in Yandal Gold.  Moreover, it does not suffer from a defect identified by Emmett J in Glenmore International AG v Takeovers Panel (2005) 220 ALR 495 at [45]-[47].

158               In Glenmore, Emmett J observed at [46] that the Panel had taken no steps to determine whether any rights or interests of any shareholder were affected by the conduct.  He said that:-

… the order applied indiscriminately to any person who sold shares on ASX during the relevant period, irrespective of whether any such person would have taken any different course had the relevant disclosure been made. 

159               The amendments to s 657D(2)(a) overcome the need for the Panel to consider whether any particular shareholder is affected.  As the primary judge observed at [48]-[50], the Panel may proceed upon the basis of an “en globo” assessment.

160               Of course, proceeding “en globo” does not relieve the Panel from the need to satisfy itself that the order is appropriate to protect the rights or interests of the group of persons who have been affected by the conduct.

161               But the nexus need not be a causal one in the manner required under s 82 of the Trade Practices Act.  Here, the nexus was satisfied by the finding that the market had been misinformed, so that shareholders who sold Rinker shares during the relevant period were affected by the unacceptable circumstances because they lost the opportunity to trade in a market that was efficient and informed.

162               The Panel also considered, as it was required to do, the question of whether CEMEX would suffer any unfair prejudice.  It is this issue which raises the question of the quantification of the lost opportunity.

163               Ordinarily it might seem inappropriate to value a lost chance at 100%, but the Panel made express reference to the way in which it calculated the value of the lost opportunity.

164               The Panel said at [132(a)], that it considered the value of the final dividend to be the most logical and best estimate of the value of the lost opportunity.  It also said at [137] that the market factored in the amount of the final dividend when told that the shareholders would be permitted to retain it.

165               Given that there was evidence to which the Panel referred at [111] that the market gained $0.34 after the announcement of 7 May 2007, we see no error in the Panel’s approach.

166               We do not consider that the Panel was required by s 657D(2)(a) to make an evaluation of each shareholder’s reliance, or to determine the value of each individual’s lost chance.  As we have already said, this would be to treat the provisions of s 657D(2) as analogous to s 82 of the Trade Practices Act. The Panel is not required by s 657D(2)(a) to place itself in the position of an arbiter of a class action in an investor class action suit.

167               Whilst there is, nonetheless, the need for a rational basis upon which the remedial order may be made, there was such a basis here as was demonstrated by the reasoning of the Panel.  The position would have been quite different if the purportedly protective order had been totally disproportionate to any rational view of the lost opportunity, but that did not occur in the present case.

FIFTH GROUND: DELEGATION OF POWER

168               Mr Jackman submitted that the effect of orders 14-16 made by the Panel conferred power on ASIC to determine conclusively whether a person came within the definition of an affected shareholder.  In his submission, s 657D does not contemplate delegation of decision-making functions; it is for the Panel to determine whether a person’s rights or interests have been affected.

169               The question of whether the Panel was permitted to delegate the functions set out in the orders depends primarily upon the nature of the power to be exercised by ASIC.  The question is essentially one of statutory construction, having regard to the purpose and object of s 657D, the character of the power which is conferred and the exigencies of the occasions which may arise for its exercise: Ex parte Forster; Re University of Sydney [1963] SR (NSW) 723 at 733 (per Sugerman, Else-Mitchell and Moffitt JJ); see also Re Reference under Section 11 of the Ombudsman Act 1976 for an Advisory Opinion; Ex parte Director-General of Social Services (1979) 2 ALD 86 at 93 per Brennan J.

170               The character and identity of the person or body to whom the power was initially given and the character of the delegate are also important considerations: see Aronson, Dyer and Groves, Judicial Review of Administrative Action (4^th Ed, 2009), p 340.

171               In the present case, the nature of the power which is to be exercised is not the power to determine the appropriate order to protect the rights or interests of shareholders.  Nor is it for ASIC to reach the necessary state of satisfaction referred to in s 657D(2)(a).

172               This is because it is necessary to read the powers conferred on ASIC by orders 14-16 in light of the Panel’s orders 3 and 4.  The decision that was made by the Panel under orders 3 and 4 was that Rinker shareholders who sold shares during the relevant period were the affected shareholders.  Subject to order 14, CEMEX was to pay to those affected shareholders who signed and returned a claim form, the sum of $0.25 per share.

173               All that orders 14-16 entail is the carrying out by ASIC of the mechanical function of determining whether a claimant, referred to ASIC by CEMEX under order 14, is entitled to be paid in accordance with the orders made by the Panel.

174               This is consistent with the purpose and object of s 657D, which is to confer upon the Panel a very wide power to make orders, including a remedial order, which is defined in far-reaching terms in s 9 of the Corporations Act.

175               Having regard to the constitution of the Panel, and to the fact that ASIC’s functions include the provision of staff and support facilities to the Panel, it cannot be thought that the powers conferred by orders 14-16 would be exercised by the Panel: see Australian Securities and Investment Commission Act 2001 (Cth), s 11(2)(a).

176               It seems to us that the matters set out in those orders involve the types of exigencies which would be considered likely to arise in the determination of claims.

177               Accordingly, we reject the submission made by Mr Jackman that orders 14-16 are an impermissible delegation of power.  This is not a case in which ASIC is a judge in its own cause.  ASIC does not step into the shoes of the Panel to exercise the power conferred by s 657D(2)(a).

CONCLUSION AND ORDERS

178               For the reasons set out above, the appeal must be dismissed.  CEMEX is to pay ASIC’s costs of the appeal.

179               We have considered the submissions made by Mr Jackman and by Mr Bennett QC on behalf of the Panel.  In our view, there should be no orders as to the Panel’s costs.

Associate:

Dated:         30 June 2009