FEDERAL COURT OF AUSTRALIA

Chaudhri v Takeovers Panel [2011] FCA 1488

FEDERAL COURT OF AUSTRALIA

Chaudhri v Takeovers Panel [2011] FCA 1488

CORRIGENDUM

1.    In paragraph 56 of the Reasons for Judgment, in the fifth sentence commencing ‘The primary judge also …’ the sentence is to commence ‘His Honour also …’.

2.    In paragraph 56 of the Reasons for Judgment, in the seventh sentence, the word ‘later’ should be inserted before the word ‘overtaken’ to read ‘… that decision was later overtaken by the Court of Appeal decision which is discussed below’.

3.    In the appearances, Counsel for the First Respondent should read ‘SK Dharmananda SC’.

Associate:

Dated:    30 January 2012

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    Unless submissions to the contrary are filed by the first respondent within 14 days, the first respondent is to pay the costs of the applicants and the fourth respondent to be taxed if not agreed.

3.    If submissions on costs are filed by the first respondent, the applicants and fourth respondent have a further 14 days to reply.

4.    Any issue as to costs will be determined on the papers.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

OVERVIEW

1    The first respondent (the Panel) seek an extension of time within which to make a determination as to unacceptable circumstances in relation to certain share acquisitions in an Australian Securities Exchange (ASX) listed company, Bentley Capital Limited (Bentley). The relevant breach, as found by the Panel, related to the acquisition by the second applicant (Data Base) on or about 7 April 2011 of 5,940,000 fully paid ordinary shares in Bentley (the Breach Shares). That decision (Bentley Capital Limited O1R [2011] ATP 13, the Review Panel decision) is challenged in this proceeding (the judicial review proceeding). This ‘interlocutory’ application is brought within the judicial review proceeding.

2    Three points arise. The first is whether the Panel may seek an extension of time within which to make a determination when it has already resolved, some months earlier, not to make a determination and rather to accept an undertaking. Secondly, what discretionary factors arise? The third is whether the Panel’s application for an extension of time within which to make a determination, in the context of the judicial review proceeding, is an application of an interlocutory nature or an application for final relief.

3    It is clear that the Panel has endeavoured to adopt a functional, efficient and expeditious solution to the problems which will be discussed below. But contrary to my original impressions, I do not think it is open for an extension of time to be granted at this point as the relevant function of the Panel has been completed and, in any event, would not in exercise of discretion grant an extension. Secondly, but incidentally to this decision, I consider (also contrary to my initial impression), that the Panel’s application for an extension of time is an application for final relief as distinct from interlocutory relief.

LEGISLATIVE OUTLINE

4    The Panel was established as a specialist body largely comprised of takeover experts. It is the main forum for resolving disputes in takeovers (s 659AA of the Corporations Act 2001 (Cth) (CA)) and is required to decide disputes in a speedy manner. Its focus was to be on commercial and policy issues.

5    The Panel is established by the Australian Securities and Investments Commission Act 2001 (Cth) (the ASIC Act). By s 657A(1) CA, the Panel may declare circumstances in relation to the affairs of a company to be ‘unacceptable circumstances’. The Panel may declare circumstances to be unacceptable circumstances whether or not they constitute a contravention of a provision of the CA. The wording of s 657A(2) CA limits the declaratory power. It provides:

657A    Declaration of unacceptable circumstances

…

(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.

6    Section 657A(3) CA stipulates relevant factors to which the Panel must have regard and that the Panel may have regard to any other matters it considers relevant. Subsection (4) provides that the Panel must give an opportunity for submissions to be made. The Panel must make its declaration in writing and publish it (s 657A(5)) and has an obligation to give each person to whom the declaration relates, a copy of it and a written statement of the Panel’s reasons (s 657A(6)).

7    By s 657B CA, the Panel can only make a declaration within three months after the circumstances occur or one month after the application under s 657C CA was made, whichever is later.

8    A declaration may only be made by the Panel or an order under s 657D or s 657E CA pursuant to s 657C CA. Section 657C(2) CA provides that an application for a declaration or an order can only be made by the bidder, the target, the Australian Securities and Investment Commission (ASIC) or any other person whose interests are affected by the relevant circumstances. (A decision by ASIC on whether to apply to the Panel is unreviewable by the Administrative Appeals Tribunal (s 1317C(gc) CA)). An application for a declaration can only be made within two months of the circumstances or a longer period as determined by the Panel (s 657C(3) CA).

9    Section 657D CA deals with orders that the Panel may make following a declaration. These include any orders, including a remedial order, that the Panel thinks is appropriate subject to certain guidelines which are not relevant to this application. There is power under s 657D(3) CA to vary, revoke or suspend an order made under s 657D CA.

10    Interim orders may be made by s 657E CA.

11    By s 657F CA, a person who contravenes an order made under s 657D CA commits an offence of strict liability.

12    By s 657G CA, ASIC or the president of the Panel or a person to whom the Panel’s order relates or a person who is a party to the proceedings, may apply to the Court for suitable relief in circumstances where a person contravenes or proposes to engage in conduct which would contravene an order made by the Panel. There are other facilitative provisions in the balance of Div 3 including the power for the Panel, of its own motion, to refer a question of law arising in a proceeding to the Court for decision.

13    There is capacity to seek review of an initial Panel decision under s 657EA CA. The Panel reviewing the decision (Review Panel) will have the same powers to make a declaration or orders as the initial panel. By subs (4), after conducting review under the section, the Review Panel may vary the decision reviewed or set it aside and/or substitute a new decision.

14    The key provision triggered by the current motion is s 657EA(5) CA which provides as follows:

657EA    Internal Panel reviews

(5)    Despite section 657B, the Panel can only make a declaration under section 657A after conducting a review under this section if the declaration is made within:

(a)    3 months after the circumstances in relation to which the declaration is made occur; or

(b)    1 month after the application for review was made;

whichever ends last. The Court may extend the period on application by the Panel.

(emphasis added)

15    It is s 657EA(5) CA which is triggered because, as the discussion below indicates, the Panel’s actions followed the review of an earlier Panel decision (Bentley Capital Limited [2011] ATP 8, the first Panel decision). I will refer to the second panel as the Review Panel.

EVENTS LEADING TO THIS APPLICATION

Reasons of the Review Panel

16    The Panel’s current application is supported by two affidavits of Mr Allan Bulman sworn on 28 September 2011 and 24 October 2011. Mr Bulman is a director of the Panel and has been since January 2008. The affidavit evidence of all parties was taken without prejudice to the debate as to whether or not the application was interlocutory in nature. In the end, nothing turned on that point in this application.

17    Mr Bulman recounts the acceptance of undertakings by the Review Panel on 5 July 2011 in the proceeding reviewing the first Panel decision (the Review Panel Proceeding). The undertakings were offered by the first applicant (Mrs Chaudhri) and Data Base, together with the fourth respondent (Mr Khan).

18    On the following day, the Review Panel made a decision and delivered reasons in the Review Panel Proceeding explaining why it accepted the undertakings in lieu of making a determination (the Review Panel decision).

19    The Review Panel decision records that the Review Panel accepted undertakings in relation to the affairs of Bentley following review of the first Panel decision, which concerned whether the parties were associates in relation to Bentley. The first Panel had not been satisfied that it could draw the necessary inferences to find the alleged associations. On additional material being made available to the Review Panel, the Review Panel noted (at [1]) that it:

… was minded to declare the circumstances unacceptable as it was satisfied that parties were associated in relation to Bentley, resulting in the acquisition of shares otherwise than in accordance with Chapter 6 [of the CA]. However, the parties offered undertakings to remedy the unacceptable circumstances, which the Panel accepted.

20    In the balance of its detailed reasons (199 paragraphs), the Review Panel explained why it inferred that Mr Khan, Mrs Chaudhri and Data Base were acting in concert or perhaps had a relevant agreement in relation to the conduct of Bentley’s affairs, in relation to the acquisition of Bentley’s shares by Data Base on 7 April 2011. Therefore, acquisition by Data Base of a parcel of shares known as the ‘Simpson Parcel’ in April 2011 contravened or gave rise to a contravention of s 606 CA.

21    The Review Panel also inferred that Mr Chaudhri and Mrs Chaudhri were acting or proposing to act in concert, or perhaps had a relevant agreement in relation to the conduct of Queste Communications Limited, an ASX listed company. That association had not been disclosed. The acquisition of the Simpson Parcel, according to the Review Panel, was the acquisition of a substantial interest otherwise and in accordance with Ch 6 CA in circumstances where the market was unaware of the aggregated voting power.

22    In the Review Panel’s view (at [189]), the acquisition of control over voting shares in Bentley did not take place in an efficient, competitive and informed market. The holders of Bentley shares did not have a reasonable and/or equal opportunity to participate in any benefit accruing to the associated parties.

23    By paras 190 to 195, the Review Panel concluded (footnotes and annexures omitted):

190.    Accordingly, having had regard to the matters in s657A(3), we were minded to declare that the circumstances were unacceptable. We informed the parties and provided a further brief inviting submissions as to proposed orders. The orders we proposed included disclosure of the association and the option of seeking an Item 7 approval, which if not taken or if approval was not obtained, would have been followed by divestiture of the shares.

191.    We were then offered undertakings based on these proposed orders to remedy the unacceptable circumstances which, as settled, are in Annexures A and B. The effect of the undertakings includes that:

(a)    disclosure will be made of the association in Bentley that the Panel found

(b)    [Data Base] will be prevented from exercising any votes attaching to the Simpson parcel

(c)    shareholders in Bentley, other than [Mr Khan], [Mrs Chaudhri], [Data Base] and any of their associates (Associated Parties), Mr Chaudhri, Orion and Queste or any of their associates will be invited to consider whether the acquisition of the Simpson parcel should be approved under Item 7 of s611

(d)    if the Item 7 approval is not obtained, the Simpson parcel will be divested by [Data Base]. This will happen by way of pro rata offer to all shareholders other than the Associated Parties, Mr Chaudhri, Orion and Queste. Any of the Simpson parcel shares remaining will be transferred to a stockbroker appointed by ASIC for sale. The Associated Parties, Mr Chaudhri, Orion and Queste will not be permitted to re-acquire them and

(e)    None of the Associated Parties may take into account any relevant interest or voting power that any of them had in the Simpson parcel for the purpose of the ‘creep’ exemption in Item 9 of s611.

192.    Mrs Chaudhri submitted that divesting a large parcel of shares in a thinly traded stock “could drive the share price down.” She therefore proposed the intermediate step of the pro rata offer to shareholders before the shares were divested.

193.    If the share price is driven down, all shareholders, and likely the company itself, could be unfairly prejudiced. In many cases, that consequence may be unavoidable. In this case, we are prepared to accept the offer of this step.

194.    The applicants submitted that “The serious nature of the unacceptable circumstances in this matter and its effect on Bentley minority shareholders warrants the Panel making a declaration of unacceptable circumstances and orders.” In Pinnacle VRB Ltd (No 5), the Panel preferred not to make a declaration of unacceptable circumstances unless it was necessary to found orders or was justified by bad faith in the conduct of the directors.

195.    While the nature of the unacceptable circumstances here is serious, the undertakings achieve what orders would have achieved, and indeed more because of the intermediate step of the pro rata offer, and we are prepared to accept them and not make the declaration of unacceptable circumstances we would otherwise have made.

The undertakings given to the Panel in lieu of declarations

24    The undertakings given by Data Base and Mrs Chaudhri (the DBC undertaking) were in the following form:

AUSTRALIAN SECURITIES AND

INVESTMENTS COMMISSION ACT 2001 (CTH)

SECTION 201A

UNDERTAKING

BENTLEY CAPITAL LIMITED 01R

Pursuant to section 201A of the [ASIC Act], [Data Base] and [Mrs Chaudhri] undertake to the Panel:

1.    Substantial holding disclosure undertaking

1.1.    The Associated Parties must, as soon as practicable, give notice of their substantial holding in relation to their voting power in Bentley and their association, including disclosing:

(a)    the name of each associate who has a relevant interest in voting shares in Bentley

(a) sic    the nature of their association

(c)    the relevant interest of each associate and

(d)    details of any relevant agreement through which they have a relevant interest in Bentley shares.

2.    Standstill undertaking

2.1.    Until either undertaking 4 or 5 is satisfied, the Associated Parties must not:

(a)    acquire any further shares or interests in shares in Bentley or otherwise increase their voting power in Bentley

(b)    dispose, transfer or grant any security interest over any shares or interests in shares in Bentley or

(c)    exercise any voting rights attaching to the Breach Shares.

3.    Operation of shareholder approval and divestment undertakings

3.1.    [Data Base] must give written notice to Bentley and the Panel immediately these undertakings are accepted that [Data Base] proposes to seek shareholder approval for the acquisition of the Breach Shares.

3.2.    The Associated Parties will do all things necessary to cause the meeting to be conducted in accordance with undertaking 4.

3.3.    If Bentley shareholders fail to approve the acquisition of the Breach Shares, then undertaking 5 applies.

4.    Shareholder approval undertaking

4.1.    [Data Base] must call, and arrange to hold, a general meeting of Bentley under s249F [CA] to put before the members a resolution to consider, and if thought fit, to approve the acquisition of the Breach Shares pursuant to Item 7 of s611 [CA] in accordance with these undertakings.

4.2.    [Data Base] must commission an independent expert selected from a list provided by ASIC to prepare an independent expert's report.

4.3.    [Data Base] must prepare a notice of meeting and explanatory memorandum for the shareholder meeting that includes the following:

(a)    a statement that any votes cast on the resolution by any of the Associated Parties, Mr Azhar Chaudhri, Orion and Queste, or any of their associates, will be disregarded

(b)    all material information known to any of the Associated Parties required for shareholders to consider the acquisition of the Breach Shares by [Data Base] in April 2011, including

(i)    the identity of [Data Base], its directors, and its associates

(ii)    the voting power that [Data Base] would have if the acquisition is approved

(iii)    the voting power that each of the Associated Parties would have if the acquisition is approved

(iv)    the voting power that [Data Base] would have if the acquisition is not approved

(v)    the voting power that each of the Associated Parties would have if the acquisition is not approved

(vi)    the effect of the undertakings given to the Panel and

(c)    a copy of the independent expert's report.

4.4.    The notice of meeting and explanatory memorandum must be in a form reviewed by ASIC and to which it has no objection.

4.5.    [Data Base] must arrange for the meeting be held at an appropriate venue in the central business district of Sydney.

4.6.    [Data Base] must arrange for the meeting be chaired by either Mr Christopher Ryan or Mr William Johnson, or if neither Mr Ryan nor Mr Johnson is available, the meeting must be chaired by a person independent of the Associated Parties, Mr Azhar Chaudhri, Orion and Queste as elected by the meeting.

4.7.    [Data Base] must reimburse Bentley any costs that it incurs associated with the meeting.

5.    Divestment undertaking

5.1.    This undertaking takes effect upon the happening of the event in undertaking 3.3.

5.2.    Following compliance with undertaking 5.3 [Data Base] will invite offeree shareholders to purchase the Breach Shares at a price of $0.22 per share on the following basis:

(a)    each offeree shareholder will be invited to acquire shares pro-rata to their shareholding in Bentley subject to paragraph (e);

(b)    any offeree shareholder will be entitled to apply for additional shares at a price of $0.22 per share;

(c)    if not all shares available for purchase pursuant to paragraph (a) are taken up, any offeree shareholder who has applied to purchase additional shares pursuant to paragraph (b) shall be entitled to take up these additional shares subject to paragraphs (d) and (e);

(d)    in the event there are not enough shares to satisfy all applications under paragraph (b), those applications will be accepted pro rata to the holdings of those offeree shareholders prior to the offers;

(e)    no offeree shareholder shall be entitled to acquire more shares than they would otherwise be entitled to acquire pursuant to Chapter 6 [CA]; and

(f)    the invitation to purchase shall be open to the offeree shareholders to accept for a period of no less than 21 days.

5.3.    [Data Base] will:

(a)    If the shareholders meeting referred to in undertaking 4 does not approve the acquisition, within 7 days of the date of that meeting prepare a draft form of offer to comply with undertaking 5.2 and provide it to Bentley for comments, which Bentley shall provide to [Data Base] with 2 business days of receiving the draft from [Data Base];

(b)    within 9 business days after the date of the Bentley shareholders meeting referred to in paragraph (a) above submit the draft offer (after taking into consideration comments received from Bentley) to ASIC for its review prior to dispatch to Bentley shareholders;

(c)    within 7 days of ASIC having no objection dispatch those invitations to the offeree shareholders;

(c)    within 3 business days of the close of the invitation period (and third party invitation period referred to in undertaking 5.2(f) above) provide to the parties, Panel and ASIC details of all shares proposed to be transferred by [Data Base] as a result of the invitations including details of the proposed transferees; and

(e)    transfer the relevant shares upon receipt of 'no objection' statements from the Panel and ASIC and upon receipt of payment for the shares such payment to be held on account of [Data Base].

5.4.    [Data Base] must reimburse Bentley for any costs it incurs associated with the invitation to purchase the shares.

5.5.    [Data Base] agrees that any Breach Shares that have not been sold to offeree shareholders will be vested in the Appointed Seller on trust for [Data Base].

5.6.    The Appointed Seller will be instructed to:

(a)    sell the remaining Breach Shares in accordance with these undertakings

(b)    account to [Data Base] for the proceeds of sale, net of the costs, fees and expenses of the sale and any costs, fees and expenses incurred by ASIC

(c)    dispose of all of the remaining Breach Shares within 3 months from the date of its engagement

(d)    use the most appropriate sale method to secure the best available sale price for the remaining Breach Shares reasonably available at that time in the context of complying with these undertakings, including the stipulated timeframe for the sale of the Breach Shares

(e)    unless the Appointed Seller sells the remaining Breach Shares on market, obtain from any prospective purchaser of the remaining Breach Shares a statutory declaration that the prospective purchaser is not associated with any of the Associated Parties, Mr Azhar Chaudhri, Orion or Queste and

(f)    not sell any of the remaining Breach Shares to the Associated Parties, Mr Azhar Chaudhri, Orion or Queste or any of their associates.

5.7.    [Data Base] and Mrs Chaudhri agree:

(a)    that neither they nor their associates will seek to acquire any of the remaining Breach Shares that may be sold on market and

(b)    to use best endeavours to ensure that none of [Mr Khan], Mr Azhar Chaudhri, Orion or Queste or any of their associates seek to acquire any of the remaining Breach Shares that may be sold on market.

5.8.    None of the Associated Parties may take into account any relevant interest or voting power that any of them or their respective associates had, or have had, in the Breach Shares when calculating the voting power referred to in Item 9(b) of s611 [CA] of a person six months before an acquisition exempted under Item 9 of s611 [CA].

6.    [Data Base] and Mrs Chaudhri agree to confirm in writing to the Panel when they have satisfied their obligations under this undertaking.

INTERPRETATION

In this undertaking:

25    The undertaking given by Mr Khan (the Khan undertaking) was in the following form:

AUSTRALIAN SECURITIES AND

INVESTMENTS COMMISSION ACT 2001 (CTH)

SECTION 201A

UNDERTAKING

BENTLEY CAPITAL LIMITED 01R

Pursuant to section 201A of the [ASIC Act], [Mr Khan] undertakes to the Panel:

1.    Substantial holding disclosure undertaking

1.1.    The Associated Parties must, as soon as practicable, give notice of their substantial holding in relation to their voting power in Bentley and their association, including disclosing:

(a)    the name of each associate who has a relevant interest in voting shares in Bentley

(b)    the nature of their association

(c)    the relevant interest of each associate and

(d)    details of any relevant agreement through which they have a relevant interest in Bentley shares.

2.    Standstill undertaking

2.1.    Until either undertaking 4 or 5 given by [Data Base] and Mrs Chaudhri are satisfied, the Associated Parties must not:

(a)    acquire any further shares or interests in shares in Bentley or otherwise increase their voting power in Bentley; or

(b)    dispose, transfer or grant any security interest over any shares or interests in shares in Bentley.

2.2.    Until either undertaking 4 or 5 given by [Data Base] and Mrs Chaudhri are satisfied, the Associated Parties will use their use best endeavours to ensure that none of Mr Azhar Chaudhri, Orion or Queste or any of their associates seek to acquire any of the remaining Breach Shares that may be sold on market.

2.3.    [Mr Khan] agrees to confirm in writing to the Panel when he has satisfied his obligations under this undertaking.

INTERPRETATION

In this undertaking:

Signed by Mr Farooq Khan

Dated 5 July 2011

Exchanges as to the effect of the undertakings

26    There has been a deal of correspondence arising in relation to a proposed shareholder meeting of Bentley as contemplated in para 4.1 (the shareholder approval undertaking) of the DBC undertaking.

27    In short, the trail of events after acceptance of the undertakings shows that on 18 July 2011, Mr Khan’s solicitor requested that the Review Panel confirm that the sale of the Queste shares would not breach the Khan undertaking or, alternatively, that the Review Panel would consent to a variation of the Khan undertaking to allow the sale. On the following day, the Review Panel advised that it considered that Mr Khan disposing of the Queste shares would breach his undertaking and that it did not consent to a variation of the undertaking.

28    On 22 July 2011, the solicitor for Data Base and Mrs Chaudhri wrote to the Review Panel advising that Mrs Chaudhri considered that her undertaking did not restrain her from causing Data Base to dispose of its Queste shares to Mr Chaudhri. The Review Panel’s acknowledgement to that effect was requested. On 26 July 2011, the Review Panel advised that it considered the steps proposed would breach the DBC undertaking. As a consequence, on 2 August 2011, Mrs Chaudhri and Data Base issued the judicial review proceeding as did Mr Chaudhri in related proceeding WAD 326 of 2011 (the related proceeding).

29    On 16 August 2011, the solicitor for Orion wrote to the Review Panel confirming that it had written to Data Base and Mrs Chaudhri seeking a variation to the DBC undertaking such that reference to Orion in para 4.3(a) be removed. On 19 August 2011, the solicitor for Data Base and Mrs Chaudhri wrote to the Review Panel asking for a stay of para 5 of the DBC undertaking until such time as the judicial review proceeding and any appeal had been fully determined. On 22 August 2011, the Review Panel responded advising that the request of a stay of the orders was premature as para 5 of the DBC undertaking only came into effect if Bentley shareholders failed to approve the acquisition of the Breach Shares. On the same day, the solicitor for Data Base and Mrs Chaudhri wrote to Orion saying that Data Base did not seek to vary the undertaking. There are ongoing exchanges debating the interpretation of the undertaking by all parties. On 29 August 2011, Orion wrote to Bentley indicating that it intended to proceed on the basis that it could vote at the meeting and that its votes would be counted. There were further requests for the Review Panel to reconsider the position but the Review Panel would not do so and made that clear in the correspondence of 5 September 2011 to all relevant parties.

30    The correspondence shows, and the Review Panel submissions confirm, that its understanding is that the effect of the undertakings is that:

    para 4.3(a) in the DBC undertaking requires Mrs Chaudhri and Data Base to include in the notice of meeting and explanatory memorandum, a statement that any votes cast on the resolution by any of the Associated Parties (as defined in the undertakings), Mr Chaudhri, Orion and Queste, or any of their associates, will be disregarded; and

    if approval is given in the way contemplated in the DBC undertaking, Mrs Chaudhri and Data Base can avoid the need for divestment. Otherwise they are required to comply with para 5 of the DBC undertaking, namely, the ‘Divestment undertaking’ (see the Review Panel decision (at [190])).

31    Mrs Chaudhri, Data Base and Mr Khan (chairman of Bentley) all contend that this interpretation is wrong. Further, Orion (which holds 28.3% of the shares in Bentley and of which Mr Khan is also chairman) has stated that it intends to proceed on the basis that it is able to vote and have its votes counted.

32    There is also disagreement about whether Data Base may include the following statement in the notice of meeting for the shareholder meeting:

By cl 4.3(a) of its undertaking to the Panel, [Data Base] agrees to prepare this Notice of Meeting, and explanatory memorandum, such that it includes a statement that any votes cast on the resolution by any of the Associated Parties, Mr Azhar Chaudhri, Orion and Queste, or any of their associates, will be disregarded. Please note, however, that both Orion and Queste have disputed the power of the Chairperson of the meeting to disregard the votes of Orion and Queste.

33    Although Data Base contends that informing the disinterested Bentley shareholders of these matters is permissible and desirable, the Panel contends that such a statement would confuse the shareholders as to the manner in which the shareholder meeting will be conducted. Again, it is not necessary to resolve whether this is correct or not at this stage, it is sufficient to indicate that this is a secondary basis upon which the Panel points to the current state of confusion following provision of the undertakings due to the uncertainty of the effect and operation of the undertakings.

34    I do not propose reviewing the entirety of the exchanged correspondence but Mr Bulman makes the point, (in neutral terms), which I accept, that the exchange of correspondence gives rise to a state of uncertainty as to whether:

(a)    the shareholder meeting will be conducted in a manner consistent with the Review Panel’s understanding having regard to para 191(c) of the Review Panel decision;

(b)    paras 3.3, 4.3(a) and 5 of the DBC undertaking will be complied with in a manner consistent with the Review Panel’s understanding;

(c)    the DBC undertaking will achieve the same as formal orders in the Review Panel proceeding; and

(d)    the DBC undertaking will remedy the unacceptable circumstances found by the Review Panel in the Review Panel proceeding.

Purpose of the application

35    Mr Bulman is concerned to ensure that the Review Panel has an opportunity to consider whether to make a declaration and any orders to remedy any unacceptable circumstances and, if so, to provide clarification to the parties of their obligations.

36    The Panel does not consider that the undertakings can be complied with in the manner it had understood. It was unclear whether the votes of the Associated Parties, Mr Chaudhri, Queste or Orion or any of their associates would be disregarded for voting purposes at the shareholder meeting.

37    Due to that uncertainty, the Panel seeks an extension of time to consider making a declaration.

THE PANEL’S ARGUMENT

38    The Panel accepts that if the Court makes the orders sought in the ‘interlocutory’ application, the Review Panel may decide whether to make a declaration of unacceptable circumstances under s 657A CA and orders under s 657D CA. Before doing so it must invite submissions from each person to whom the proposed declaration relates, each party to the proceeding and to ASIC (s 657A(4) CA). Similarly, prior to making any orders, the Review Panel must invite submissions from each person to whom the proposed order would be directed, each party to the proceeding and to ASIC (s 657D(1) CA).

39    The Panel relies on a decision in Re Takeovers Panel [2002] FCA 1120, where Finkelstein J listed (at [11]) the following considerations relevant to the Court’s discretion as to whether to grant an extension of time in addition to the public interest in the Panel fulfilling its functions. Those considerations were whether:

    the Panel has delayed carrying out its functions and in bringing the application;

    interested parties have engaged with the Panel in relation to its proposed findings;

    the discussion from parties and others raising issues has been beneficial to inform the Panel of additional considerations that could be taken into account when considering the matter further;

    the additional time sought by the Panel is not excessive;

    it is reasonably certain that the Panel will finalise the matter in the extended time; and

    there is a risk of prejudice to any party if the extension be granted.

40    Similar reasons were reflected in the decision in Takeovers Panel v Glencore International AG (2005) 55 ACSR 453 also by Finkelstein J.

41    The Panel argues that all those considerations presently apply.

42    As to the delay question and the additional time sought, the Panel says that although the uncertainty of the effect of the undertakings was something which was not immediately apparent, it has acted as soon as reasonably practicable when the uncertainty arose. Moreover, the Panel seeks no more than 21 days from the date of the determination of the application and contends that it is reasonably likely that the Review Panel will finalise the matter in the extended time.

43    In McCann v Pendant Software Pty Ltd (2006) 235 ALR 566, Finkelstein J stressed (at [36]) that the principal issue was whether there was utility in making an order extending time. The Panel argues that in a situation where a panel makes a mistake as to the effect of the undertaking, it should be given an opportunity to deal with the application and dispose of the matters raised by it (McCann at [38]-[40]). In McCann, Finklestein J held (at [38]) that if the Panel commits a jurisdictional error in arriving at its decision, it should review it as there has, in effect, been no decision.

44    The Panel argues that there is utility in granting the extension. It was clear that the Review Panel was minded to declare the circumstances unacceptable and as the undertakings have been, in the Panel’s view, ineffective to achieve the purpose to which they were directed, it should now be given the opportunity to make the declarations.

45    Alternatively, again, with regard to McCann (at [38]-[40]), there may have been a mistake as to the effect of the undertakings. There is a disagreement between the parties as to whether the votes of the Associated Parties will be disregarded at the shareholder meeting where the disinterested Bentley shareholders were to decide whether or not to approve the acquisition of the Breach Shares.

46    There is next the ‘possibility’ that the Review Panel has committed jurisdictional error (actually contended by the applicants in the judicial review proceeding) but with reference to the comments in McCann (at [37]) both in this proceeding and in the separate proceedings by Mr Chaudhri, the related proceeding. As to that, the Panel says that assuming there be jurisdictional error, the Review Panel should be free to remake its decision subject to being granted an extension of time (my emphasis). It argues by reference to McCann (at [37]-[41]) that correcting an error would warrant an extension of time. The Panel argues that the grant of an extension of time should facilitate its opportunity to revisit the matter. The parties are firmly at odds over this contention.

47    The Panel also argues that the matter before it has not been disposed of as the circumstances which the Review Panel was minded to declare unacceptable have not been remedied. The argument on this topic is put as follows. If unacceptable circumstances were found to exist by virtue of an ‘association’, the Panel can make orders to remedy those circumstances pursuant to s 657D CA. Alternatively, the Panel can accept undertakings which similarly remedy the unacceptable circumstances (s 201A ASIC Act). Having found the associations existed and being minded to declare unacceptable circumstances, the Review Panel received from Mrs Chaudhri, Data Base and Mr Khan an offer to give undertakings to remedy the ‘unacceptable’ circumstances. Had it not been offered the undertakings, the Review Panel was ‘considering’ making a declaration under s 657A CA together with orders under s 657D CA. The Panel argues that the matter has not been disposed of as the circumstances the Review Panel was minded to declare unacceptable have not been remedied.

48    Again, the parties are at odds over this issue.

CONSIDERATION

Is there power to extend time?

49    In Glencore, Finkelstein J made observations (at [17]), expressly obiter, to the effect that if the Panel believes that the original declaration requires variation, it can make appropriate changes under its power to vary the decision under review (s 657EA(4)(a) CA) and there is no time constraint in the exercise of that power. Those observations, however, preceded the amendments made in 2007 which added s 657EA(5) CA setting up special time limits for the making of a declaration by a Review Panel.

50    It is clear from s 657EA(5) CA that the Review Panel can only make a declaration of unacceptable circumstances, after conducting its review, if the declaration is made within three months after the circumstances occur or, alternatively, within one month after the application for review was made, whichever is the later time. The Court may extend the period on application by the Panel. There is no reason to believe, nor was it argued in this case, that such an application must be made within the original time period.

51    However, delay will clearly be a factor to take into account given the emphasis in the entire Panel regime on expeditious decision-making within a potentially dynamic market environment. Interestingly, although the amendment by s 657EA(5) CA stipulates the time limit within which the Review Panel should make a declaration, it does not impose any express time limit for any of the other acts to which subs (4) is directed, such as varying the decision reviewed or setting it aside, or setting it aside and substituting a new decision. In any event, for the purposes of this application, it is accepted by all parties that an extension of time is necessary if the Review Panel is to be permitted to revisit its earlier decision.

52    To the extent that Glencore might be taken as authority for the proposition that if the Panel believes the original declaration requires variation, it can make appropriate changes under its power to vary the decision under review without any time constraint, in my view, the amendment makes it clear that if a Review Panel wishes to make or vary the original declaration and it has not done so within the time limits, it needs leave to do so. The power to vary consequential orders is not, in my view, the same as the power to make a declaration.

53    Although it is common ground that an extension of time is needed and that it may be sought and granted outside of the original maximum time period, there is another more significant question. That question is whether the function of the Panel is complete. Senior counsel for the Review Panel made the submission that the Panel does not ‘put away the file’ once there has been a declaration or order or an acceptance of undertakings. Counsel for Mr Khan made it clear that ‘putting its file away’ is exactly the effect of the legislation once the Panel has discharged its function. Counsel for the applicants made the point that the Panel does not have a roving commission to enquire into matters generally once it has discharged its function of either making or not making a declaration with or without consequential orders.

54    In my view, although the statutory regime provides for some extension of the Panel’s function (for example, bringing an application for relief for failure to comply with its orders), beyond that which is expressly stipulated by the statute, the Panel’s function is complete once it has determined and published its decision on whether or not a declaration will be made.

What exceptions are there to this general position?

55    McCann also preceded the 2007 amendments which added s 657EA(5) CA but post-dated Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 in which it was held (at [51]-[52]) that if an administrative decision-maker commits a jurisdictional error in reaching his or her decision, the decision is liable to be set aside and whether set aside or not, the decision-maker can correct the error in a later decision. It followed, therefore, in McCann (at [37]) that if the Panel had committed a ‘jurisdictional’ error in arriving at its decision that the undertaking proffered rendered it inappropriate to make a declaration of ‘unacceptable circumstances’, it could still deal with the application.

56    In McCann, Finkelstein J, however, went further, pointing out (at [38]) that it is not only in the case of jurisdictional error that an administrative decision-maker can correct error. His Honour cited some other examples such as the observations of Beaumont J in Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No 1) (1991) 32 FCR 219 (at 225) where the decision proceeded on a wrong factual basis. The primary judge also followed the decision of Gillard J in Kabourakis v Medical Practitioners Board (Vic) (2005) 24 VAR 90 (at [39]). However, significantly, that decision was overtaken by the Court of Appeal decision which is discussed below. His Honour was also of the view (at [43]) that the Review Panel was entitled to proceed with the application because it had made an important mistake in the effect of the undertaking. His Honour said (at [44]) that there was nothing in the legislation precluding the Panel from proceeding in the present circumstances. As I say, however, McCann, as with the other cases relied upon by the Panel, preceded the 2007 amendments.

57    The respondents to this application contend that the Review Panel has (within the time limit) made its decision not to make a declaration under s 657A CA but, rather, to accept undertakings. The Panel is obliged to publish its declarations and reasons under s 657A(5) and (6) CA. It is an offence for a person to contravene a Panel order (s 657F CA). The Court has power to make remedial orders and to grant, in effect, an injunction if a person contravenes or proposes to engage in conduct that will contravene an order of the Panel (s 657G CA). Moreover, where the Panel accepts an undertaking, that undertaking can be enforced by the Court pursuant to s 201A(3) of the ASIC Act.

58    The respondents point to the fact that:

    It is now 7 months since the circumstances in respect of which proceedings before the first Panel were first instituted;

    It is nearly 6 months since the application for review of the first Panel decision was lodged; and

    More than 4 months since the undertakings were accepted by the Review Panel. (The application for extension of time was first brought on 28 September 2011). The relevant time limit for the purpose of this application ended on 11 July 2011.

59    At the heart of the opposition to the extension is the contention that the Review Panel has made its decision and there is no longer any basis on which it can apply to extend time to make another decision.

60    In Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542, Gleeson CJ said (at [6]-[7]):

6    Chapter 6 of the Corporations Act 2001 (Cth), in regulating takeovers, seeks to preserve an efficient, competitive and informed capital market, and to protect the legitimate interests of investors in that market. The purposes of the Chapter are declared in s 602, in terms that define the nature of the considerations at work in reaching a conclusion that circumstances in relation to the affairs of a company are unacceptable and that the public interest requires a certain form of regulatory intervention in the market. The matters to which the Panel may have regard in deciding whether, and in what way, it should exercise its powers, and the information and judgment it brings to bear upon the likely consequences of intervention, understood in the light of the purposes stated in s 602, are aspects of a decision-making process of an order quite different from that which may be involved where a litigant seeks from a court an injunction to restrain a contravention of the Act, or where a court is asked to penalise a contravention. The constitution of the Panel, the way in which it is intended to go about its business, the way in which it informs itself about matters that arise for its consideration, and the nature of the considerations according to which it acts or declines to act, all point against a conclusion that this is a judicial process.

7    Various parts of the regulatory regime established by Ch 6 involve the exercise of judicial power, and the application of the judicial method to the determination of legal rights and liabilities. Judicial power is employed to enforce the rights and obligations which the Act attaches to actions of the Panel. On the other hand, the Panel's supervisory and regulatory function, having regard to the constitution of the body itself, the nature of the legislative purposes it pursues, and the consequences of what it does, is not an exercise of judicial power.

61    In a different environment, in Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, Gummow J (at 211) noted that once administrative decisions are given effect by communication to the affected party may be irrevocable on the basis that the power to make the decision is spent. His Honour said:

But in any given case, a discretionary power reposed by statute in the decision maker may, upon a proper construction, be of such a character that it is not exercisable from time to time and it will be spent by the taking of the steps or the making of the statements or representations in question, treating them as a substantive exercise of the power. The result is that when the decision maker attempts to resile from his earlier position, he is prevented from doing so not from any doctrine of estoppel, but because his power to do so is spent and the proposed second decision would be ultra vires. The matter is one of interpretation of the statute conferring the particular power in issue.

62    In Bhardwaj, Gleeson CJ also noted (at [8]) that the ‘requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration’.

63    In Kabourakis v Medical Practitioners Board (Vic) on appeal ((2006) 25 VAR 449), the Court (Warren CJ, Chernov and Nettle JJA), adopted (at [48]) the principle from the Supreme Court of Canada that as a rule, a statutory tribunal cannot revisit its own decision simply because it has changed its mind or recognised that it has made an error within jurisdiction: see also Chandler v Alberta Association of Architects [1989] 2 SCR 848 per Sopinka J (at 862). This passage was also cited with approval in Bhardwaj by Gleeson CJ (at [7]) and by Gaudron and Gummow JJ (at [52]).

64    In Kabourakis ((2006) 25 VAR 449), the Court of Appeal held (at [48]) that:

… the requirements of good administration and the need for people affected directly or indirectly by decisions to know where they stand meant that finality is the paramount consideration, and the under the statutory scheme, including the conferring and limitation of rights of review on appeal, will be seen to evince an intention inconsistent with capacity for self-correction of non-jurisdictional error.

65    The Victorian interpretation legislation contained a provision in similar effect to s 33 of the Acts Interpretation Act 1901 (Cth) which provides that:

(1)    where an Act confers a power, imposes duty, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as the occasion requires.

66    In consideration of an argument which depended upon this provision, the Court held (at [86]) that the comparative Victorian provision did not enable a further exercise of power which would ‘annihilate the effects of a finding made by a panel in the determination of a hearing undertaken pursuant to a previous exercise of power’.

67    Similarly, in Export Development Grants Board v EMI (Australia) Ltd (1985) 9 FCR 269, the Full Court held (at 276) that ‘[w]hen the Board has determined the entitlement and the grant, its original task in relation to that claim has ended’.

68    These cases suggest that there is no statutory power (and there is no other power) to extend time for the Panel to make a determination in circumstances where it has already made a decision not to make a determination, unless that decision is vitiated by jurisdictional error.

69    In my view, the Review Panel, having made the administrative decision to accept the undertakings and not make a declaration of unacceptable circumstances, has exercised its power. It has no further relevant statutory power in relation to that particular decision. The power to grant an extension of time is not enlivened as the Review Panel has conducted a review and made the decision. That decision creates rights and obligations which are enforceable under s 657G CA. A breach of an order of the Panel is an offence under s 657F CA, the undertakings are enforceable under s 201A(4) of the ASIC Act. The exception to this result is that if the decision of the Panel involves jurisdictional error, it will not be binding (Bhardwaj per Gaudron and Gummow JJ (at [51])). If the Panel’s decision involves jurisdictional error, then subject to s 657EA(5), the Panel can make the decision afresh. However, the Panel, ASIC and those who have complained to the Panel have denied that the Review Panel has made any jurisdictional error.

70    The decision in McCann may suggest that there would be two other circumstances in which having made a decision, there will be power for the Court to make an order for an extension of time. The first is when the Panel has proceeded on the wrong factual basis (at [38]). There is no suggestion that has occurred in this instance. The second theoretical basis identified in McCann (at [41]) is where the Panel has not disposed of the application which is before it. Again, there can be no suggestion of that in this situation. The Review Panel conducted the review under s 657E CA and having done so, varied the decision reviewed by accepting the undertakings and declining to make a declaration. It disposed of all matters which were raised before it. The Review Panel will not have committed jurisdictional error or failed to have performed its function simply because it subsequently considers that the matter could be dealt with more effectively in another manner. Assuming, for present analysis, that the views in McCann are correct, there is no basis for the extension of time for making of a decision.

Is there utility?

71    It is unnecessary to consider this topic as the first topic (finality) is sufficient to dispose of the application. Nevertheless, for completeness I record without deciding, the argument that there is a real question also, as to the utility of permitting an extension of time.

72    I accept that it is tolerably clear that the Review Panel wishes to change its decision in some way. Otherwise the extension of time would be pointless. The most obvious way is to make a declaration of unacceptable circumstances and consequential orders. It is doubtful, however, whether the Review Panel would have power to vary or set aside its decision in that way.

73    The Review Panel has already exercised a power of review under s 657EA(4) CA. It has reviewed the first Panel decision on the question of whether a declaration of unacceptable circumstances could be made or should be made. It has reviewed the first Panel decision on whether a declaration should have been made and, if so, what orders should have been made under s 657D CA. There is only power to make an order under s 657(2) CA if a declaration of unacceptable circumstances has already been made (s 657D(1) CA). It is only if that declaration has been made and consequential orders invoked that the Review Panel will subsequently have a power to vary, revoke or suspend such a consequential order (pursuant to s 657D(3) CA).

74    While there is power conferred on the Panel to consent to a request by a person giving an undertaking to withdraw or vary it (s 201A(4) of the ASIC Act), no such request has been made in this instance. Absent a request, the Panel has not suggested that it has power to vary or rescind the requirement of the giving of an undertaking. The express statutory powers contained in the CA and the ASIC Act do not include a power to vary, revoke or suspend any other decision made by the Panel including a decision not to make a declaration but to accept undertakings.

75    The applicants argue that it is doubtful whether the Review Panel can change its mind and make a declaration and consequential orders for the reasons set out above. It is not apparent that there is any utility in extending time under s 657EA(5) CA even if the Court’s power to extend time has been enlivened.

76    The rationale behind this argument is that the function of the Panel, when it finds circumstances to be unacceptable, is to alter the parties’ rights and obligations so as to remedy or to reduce the effect of those unacceptable circumstances. However, in this case, undertakings having been accepted, the Review Panel’s function is at an end unless there is an application to vary or rescind the undertaking or, in an appropriate case, to pursue remedies for enforcement or observance of consequential orders made (see s 201A(3) and (4) of the ASIC Act). This has not occurred.

77    While it is unnecessary to resolve this argument, it does highlight an awkwardness in an extension being granted.

Discretionary issues

78    There is evidence that there has been reliance upon the Review Panel decision. Mr Khan has deposed to the fact that he has complied with the Khan undertaking and has continued to comply with that part of the undertaking described as a ‘standstill’ undertaking. In complying he has incurred expenses in the form of legal costs and has also refrained from disposing of shares which he would otherwise have sold in order to realise cash. In addition, he points to the fact that the matters that are the subject of the Review Panel decision have been the subject of ‘significant financial press’ in Australia adverse to him. Mr Khan says:

12    I have not sought to agitate any dispute or argument as to the question of whether the Undertakings accepted by the Review Panel will remedy the circumstances found by the Review Panel nor have I in any way contributed to what is said by Mr Bulman (subject to proper objections being taken by my counsel at the hearing of the application for extension of time) to be “a state of uncertainty”.

13    I draw attention to the fact that by annexure AJB15 the Review Panel on 5 September 2011 (the first return date for directions in the within proceedings) indicated a disagreement as to the effect of the Undertaking given by my sister and [Data Base]. Having regard to annexure AJB16 to the affidavit of Mr Bulman, the Review Panel delayed for a period of 10 days before giving notice to my solicitors and the other parties of its contemplated intention to apply by way of the application for an extension of time.

14    If the extension of time application is allowed I will be obliged to incur further expense which in all the circumstances will be irrecoverable.

79    Were it open now to exercise a discretion to extend time, I would not do so. In my view, while I raise no criticisms, (the history showing that the Panel has responded to a volatile situation in a responsive and creative manner), the delay in the bringing of this application in circumstances where the parties involved incurred considerable cost and uncertainty in apparently purporting to comply with the undertakings given has to be taken into account. While, on the one hand, the Panel does not concede any jurisdictional error (and it is not possible to say whether or not there has been any jurisdictional error at this stage), it nevertheless wishes to rely on the possibility of error or uncertainty to enliven the power to make a new decision. In circumstances where the matter has already been brought before the Court by way of judicial review and the Court is seized of the dispute between the parties as to jurisdictional error, the better course is for the Panel to leave the matter for the Court to decide.

IS THE APPLICATION INTERLOCUTORY?

80    On the second issue, the Panel relies on the passage from Hall v Nominal Defendant (1966) 117 CLR 423 by Taylor J where his Honour said (at 440):

… So an order made in the course of an action or suit which does not conclude the rights of the parties inter se, although it may, of course, conclude the fate of the particular application in which it is made, is interlocutory only. …

81    The Panel says that the application, if successful, does not have the effect of finally disposing of the rights of the parties. Those parties do not lose the right to have the decision of the Review Panel reviewed by the Court pursuant to this proceeding for judicial review should there still be complaints of denial of procedural fairness or jurisdictional error.

82    Further, the Panel argues that the extension of time, if granted, may change the nature of the applicants’ application. That does not mean that the ‘interlocutory’ application is final in nature. It does not, the Panel argues, finally determine the rights of the parties in relation to the principal cause pending between them (Licul v Corney (1976) 180 CLR 213 per Barwick CJ (at 219) and Gibbs J (at 225).

83    While it makes no difference to the resolution of the Panel’s extension of time application and recognising that debates about whether applications are interlocutory or final are as dry as they are unpredictable, in my view, the application is for final relief. The controversy between the parties in this proceeding (the ‘Lis’) is whether the administrative decision made by the Review Panel should be set aside for jurisdictional error. The dispute on the Panel’s application, however, is whether the Panel should have an extension of time for the Review Panel to make a new or different decision. The dispute in relation to the Panel’s application for an extension of time will be resolved once and for all by granting or refusing the extension. That will be the final disposition of that dispute, subject only to appeal.

84    The helpful pragmatic approach taken by the parties in this matter has been to treat the application as being interlocutory without prejudice to the substantive argument as to whether or not it is truly so. To that end, the matter has been brought and resolved within the judicial review proceeding even though, in my view, it is a separate final proceeding in its own right. In this particular application, nothing turns on the distinction because I have received, in any event, the affidavit evidence relied upon by the parties when, in a final hearing, the admissibility of that evidence might be the subject of debate in the absence of some special provision being made for its receipt.

85    Consistent with my view as to the status of the application, the judgment disposing of it has been delivered in open court.

CONCLUSION

86    For the foregoing reasons, in my view, the application must be dismissed. Mrs Chaudhri, Data Base and Mr Khan have sought the costs of the application. I invite the Panel to make written submissions, should it choose to do so, within 14 days as to any reason why costs of the application should not follow the event. Should Mrs Chaudhri, Data Base and Mr Khan seek to file submissions in reply, they should do so within 14 days. Thereafter, the matter will be dealt with on the papers. The following orders are made:

1.    The application be dismissed.

2.    Unless submissions to the contrary are filed by the first respondent within 14 days, the first respondent is to pay the costs of the applicants and the fourth respondent to be taxed if not agreed.

3.    If submissions on costs are filed by the first respondent, the applicants and fourth respondent have a further 14 days to reply.

4.    Any issue as to costs will be determined on the papers.

Associate:

Dated:    21 December 2011