FEDERAL COURT OF AUSTRALIA

GPN Vaccines Limited, in the matter of GPN Vaccines Limited [2025] FCA 497

ORDERS

(Amended pursuant to rule 39.05(g) of the Federal Court Rules 2011 (Cth))

OTHER MATTERS:

A.    The Court notes the letter from the Australian Securities and Investments Commission (ASIC) to the directors of the plaintiff dated 29 April 2025.

B.    The Court is satisfied that ASIC has had a reasonable opportunity to:

(i)    examine the terms of the proposed scheme of arrangement to which the application relates and a draft explanatory statement relating to that arrangement; and

(ii)    make submissions to the Court in relation to the proposed scheme of arrangement and the draft explanatory statement.

THE COURT ORDERS THAT:

1.    Pursuant to subsection 411(1) and section 1319 of the Act, the plaintiff (GPN AUS) convene and hold a meeting of its shareholders (Scheme Meeting):

(a)    for the purpose of considering and, if thought fit, agreeing (with or without modification) to the scheme of arrangement (Scheme) proposed to be made between GPN AUS and its shareholders, the terms of which are set out in Annexure A to these orders; and

(b)    to be held on 27 May 2025 commencing at 10:00am and will be conducted both in-person at CBIRN, Level 4, 1 Moore Street, Canberra ACT 2601, and virtually via an online platform (Online Platform).

2.    Pursuant to subsection 411(1) and section 1319 of the Act, the Scheme Meeting be convened by sending to each GPN AUS shareholder on or before 2 May 2025 an email substantially in the form of the template email at pages 5 of 7 of Annexure RLD-2 to the affidavit of Rebecca Louise Durso affirmed on 29 April 2025 (Second Durso Affidavit) which contains hyperlinks to online portals and websites from which the shareholder may:

(a)    access and download an electronic copy of a document substantially in the form which appears at Annexure RLD-1 to the affidavit of Rebecca Louise Durso affirmed on 28 April 2025 as amended in the manner set out at pages 1 to 4 of Annexure RLD-2 to the Second Durso Affidavit, save that on page 50 of that document in section 9.2(f), the words “GPN USA may be forced to change its basis of accounting from IFRS to GAAP” be replaced with the words “it is likely that GPN USA will be required to change its basis of accounting from IFRS to GAAP….” (Scheme Booklet);

(b)    access and download an electronic copy of the Scheme Meeting online user guide;

(c)    lodge online an electronic voting form and a proxy appointment; and

(d)    access the Online Platform to listen to and participate in the Scheme Meeting.

3.    Voting on the resolution to agree to the Scheme is to be conducted by way of a poll.

4.    A proxy in respect of the Scheme Meeting will be valid and effective if, and only if, it is lodged online in accordance with the instructions on the online portal or website referred to in order 2 and received by GPN AUS by 10.00am on 25 May 2025.

5.    Dr Timothy Hirst or, failing him, Mr Barry Palte be Chairperson of the Scheme Meeting.

6.    Pursuant to r 1.3 of the Federal Court (Corporations) Rules 2000 (Cth) (Rules), compliance with rules 2.4(1), 2.15, 3.4 and Form 6 is dispensed with.

7.    By no later than 6 June 2025, GPN AUS is to publish an announcement on its website which sets out the details for the second court hearing and the process for any person wishing to appear at that hearing to oppose the approval of the Scheme, together with an address for service of GPN AUS.

8.    The further hearing of the Originating Process is adjourned to the Honourable Justice Longbottom at 9.30am on 16 June 2025 or as soon thereafter as the business of the Court allows.

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

ANNEXURE A

REASONS FOR JUDGMENT

LONGBOTTOM J:

INTRODUCTION

1    By originating process filed 16 April 2024, the plaintiff, GPN Vaccines Ltd (GPN AUS), sought orders and directions pursuant to ss 411 and 1319 of the Corporations Act 2001 (Cth) (Act) to convene and hold a meeting of its shareholders (Scheme Meeting) to consider and, if thought fit, agree (with or without modification) to a proposed scheme of arrangement (Scheme) between GPN AUS and its shareholders.

2    The commercial purpose of the Scheme is to redomicile GPN AUS from Australia to the United States of America (USA). This is to occur by means of a “top hatting” transaction whereby GPN shareholders will be divested of their shares in exchange for shares in GPN Vaccines Inc (GPN USA) a company newly incorporated in the USA.

3    If the Scheme is approved and implemented:

(a)    GPN USA will acquire all the shares held by GPN AUS shareholders on the “Record Date” (which is 7:00 p.m. on the fifth business day after the Scheme becomes effective or such other time and date agreed to in writing between GPN AUS and GPN USA) (Scheme Shares).

(b)    GPN AUS shareholders as at the Record Date (Scheme Shareholders) will receive 10 GPN USA shares for every one Scheme Share held. If a Scheme Shareholder holds a number of Scheme Shares not divisible by 10, that number of shares will be rounded up to the next nearest number that is divisible by one for the purpose of calculating the number of GPN USA Shares to be issued to the Scheme Shareholder. I will refer to the consideration to be provided to the Scheme Shareholders under the Scheme as the “Scheme Consideration”.

4    The Scheme Meeting is proposed to be held at 10:00 a.m. on 27 May 2025, and will be conducted both in-person at CBRIN, Level 4, 1 Moore Street, Canberra, and virtually via an online platform. GPN AUS shareholders (and their authorised proxies, attorneys and corporate representatives) who participate in the meeting via the online platform will be able to listen to an audio webcast of the Scheme Meeting, view presentations slides, ask questions and cast an online vote in relation to the “Scheme Resolution” set out in the “Notice of Scheme Meeting”.

5    It is proposed that Dr Timothy Hirst, Chairman, Chief Executive Officer and Executive Director of GPN AUS will chair the Scheme Meeting. Should Dr Hirst be unable to act as chair, it is proposed that Mr Barry Palte, the Non-Executive Director of GPN AUS, will perform that role at the meeting.

6    On 30 April 2025, I made orders convening the Scheme Meeting. These are my reasons for making those orders.

SCHEME BACKGROUND

7    GPN AUS is an Australian public company limited by shares and registered in South Australia. The company specialises in vaccine research and development regarding bacterial respiratory infections, particularly streptococcal and pneumococcal vaccines. GPN AUS engages in research and development activities in Australia, Canada, the United Kingdom and the USA and is currently conducting clinical trials in Australia.

8    The current capital structure of GPN AUS comprises 4,301,289 ordinary shares on issue, 626,198 employee share options and one warrant. The current directors of GPN AUS are Dr Hirst, Mr Palte and three additional non-executive directors. Each director has an interest in GPN AUS shares and GPN AUS options. In aggregate, the directors have an interest of approximately 14.7 % of the total GPN AUS shares, and 62.4% of the GPN AUS options, currently on issue.

9    GPN USA was incorporated in Delaware, in the USA on 11 April 2025. The corporation has nominal capital of one outstanding share of common stock, held by Dr Hirst, but no assets. GPN USA has the same directors as GPN AUS.

Scheme Implementation Deed

10    On 16 April 2025, GPN AUS and GPN USA entered into a deed providing for implementation of the Scheme (Scheme Implementation Deed). The Scheme Implementation Deed relevantly provides that:

(a)    the conditions precedent to the Scheme becoming effective include:

(i)    compliance with s 411 of the Act; and

(ii)    an independent expert issuing a report before the date on which the scheme booklet is provided to the Australian Securities and Investments Commission (ASIC) concluding that the Scheme is in the best interests of GPN AUS shareholders; and

(b)    the transactions forming part of the Scheme will be implemented in the following sequence: GPN USA will provide the Scheme Consideration and GPN USA will acquire the Scheme Shares.

Deed Poll

11    On 23 April 2025, GPN USA entered into a deed poll in favour of the Scheme Shareholders. By the deed poll, GPN USA covenant to perform the actions attributed to it under the Scheme and to provide the Scheme Consideration to the Scheme Shareholders in accordance with the Scheme.

Scheme Booklet

12    GPN AUS prepared a draft scheme booklet, which was provided to ASIC on 16 April 2025. Preparation and verification of the draft scheme booklet was overseen by a due diligence committee established by the company. The members of the due diligence committee comprised Dr Hirst, James Selkirk, the Chief Financial Officer (CFO) of GPN AUS, various lawyers and a tax adviser for GPN AUS.

13    The verification process, amongst other matters, required confirmation that each material statement relating to GPN AUS in the draft scheme booklet was true (if one of fact) or based on reasonable grounds (if a future matter or based on a matter of analysis) and was not misleading or deceptive, including by omission.

14    The draft scheme booklet includes a draft explanatory statement providing an overview of the Scheme. This includes a synopsis of “potential risks that GPN AUS Shareholders should consider when deciding how to vote on the Scheme”. It also annexes a draft independent expert report from BDO Corporate Finance. The draft independent expert report concludes that the Scheme is in the best interests of GPN AUS shareholders as a whole in the absence of an alternative proposal or any further information.

15    ASIC raised one query in relation to the draft scheme booklet, namely whether it would be appropriate for GPN AUS to disclose a risk relating to trade tariffs in the USA. The draft scheme booklet, amended to include a discussion of trade tariffs, was provided to ASIC on 28 April 2025. The amended draft scheme booklet also included an amended “Notice of Scheme Meeting” directing GPN AUS shareholders to an email, to be provided with the scheme booklet (once registered), with instructions as to how to appoint a proxy.

ASIC Letter

16    On 29 April 2025, ASIC provided GPN AUS’ directors with a letter regarding the draft explanatory statement (preliminary letter). By the preliminary letter, ASIC confirmed that it had a reasonable opportunity to examine the terms of the Scheme and draft explanatory statement, and that it did not propose to appear to make submissions or intervene to oppose the Scheme at the Court hearing on 30 April 2025. ASIC did not appear.

STATUTORY FRAMEWORK

17    Sub-section 411(1) of the Act relevantly provides that, where an arrangement is proposed between a “Part 5.1 body” and its members or any class of them, the Court may, on the application in a summary way of the body, order a meeting of the members to be convened in such manner, and to be held in such place, as the Court directs. This is the first stage in the procedure, provided for in Part 5.1 of the Act, whereby an arrangement between a company and its members can be made binding on all members.

18    There are two further stages in that procedure:

(a)    if an order under s 411(1) is made, a meeting is convened at which “a resolution in favour of the … arrangement” is put to a vote of the members: Act, s 411(4)(a); and

(b)    if the resolution is passed by the necessary majority at the meeting, an application is made to the Court for approval of the arrangement: Act, ss 411(4)(b) and 411(6).

Statutory requirements for an order under s 411(1)

19    The discretion conferred by s 411(1) is relevantly subject to the following statutory pre-conditions:

(a)    the scheme is an “arrangement” between a “Part 5.1 body” and its members or any class of them: Act, s 411(1).

(b)    an application for the order is made in a summary way by the Part 5.1 body: Act, s 411(1).

(c)    ASIC has been given 14 days’ notice of the hearing of the application (or such lesser period as the Court or ASIC permits): Act, s 411(2)(a).

(d)    the Court is satisfied that ASIC has had a reasonable opportunity:

(i)    to examine the terms of the proposed arrangement to which the application relates and a draft explanatory statement relating to the proposed arrangement: Act, s 411(2)(b)(i); and

(ii)    to make submissions to the Court in relation to the proposed scheme and the draft explanatory statement: Act, s 411(2)(b)(ii).

20    The procedure is further regulated by s 412 of the Act, reg 5.1.01 and Sch 8 of the Corporations Regulations 2001 (Cth) (Regulations) and r 2.41 of the Federal Court (Corporations) Rules 2000 (Cth) (Rules), which relevantly require:

(a)    the originating process is supported by an affidavit stating the facts in support of the process: Rules, r 2.41.

(b)    before the hearing of the application under s 411(1), the plaintiff files an affidavit stating the names of the persons nominated to act as chairperson and alternate person for the meeting, their willingness to act in that role and any conflicts of interest or prior dealings those persons have had with the Part 5.1 body: Rules, r 3.2(a) and (b).

(c)    the explanatory statement included within the scheme booklet comply with the disclosure requirements of s 412(1) of the Act and reg 5.1.01 and Sch 8 of the Regulations.

Discretionary considerations

21    Where the statutory requirements have been met, it remains for the Court to be satisfied that it is appropriate to make an order under s 411 convening a meeting. In Re Cytopia Ltd [2009] VSC 560, Davies J gave the following overview of the principles that apply to the exercise of that discretion (at [3]):

The authorities make it clear that the Court’s role at this stage is not to express a view on whether the proposed scheme should be approved. It is also clear that it is not the Court’s role to usurp the shareholders’ decision, by attempting to intrude its own commercial judgment. The Court is to be concerned with whether there is adequate disclosure to the shareholders in the Scheme Booklet (or explanatory memorandum), whether the legal requirements otherwise have been complied with and whether the scheme, on its face, is one that is sufficiently “fair and reasonable” to be capable of being put to shareholders for their approval or rejection.

(Emphasis added, footnotes omitted.)

22    This requires the Court to be satisfied of two matters: Re Japara Healthcare (2021) 156 ACSR 695: [2021] FCA 1150 at [34] (Moshinsky J). First, that the scheme is fit for consideration by the proposed meeting in the sense that it is of such a nature and cast in such terms that, if it achieves the statutory majority at the scheme meeting the Court would be likely to approve it on the hearing of a petition which is unopposed: ibid, relevantly citing FT Eastment & Sons Pty Ltd v Metal Roof Decking Supplies Pty Ltd (1977) 3 ACLR 69 at 72 (Street CJ). Second that the members are to be properly informed as to the nature of the scheme before the scheme meeting: Re Japara, relevantly citing Re NRMA Ltd (No. 1) (2000) 33 ACSR 595; [2000] NSWSC 82 at [30] (Santow J).

23    It is quintessentially a commercial matter for the members to assess whether or not to accept particular consideration for shares. The shareholders ought not be prevented from having an opportunity to do so, provided that they are acting on sufficient information and with time to consider what they are voting on: Re Australian Pharmaceutical Industries [2022] FCA 103 at [22] (Beach J).

24    If the scheme of arrangement is one that seems fit for consideration by a meeting of the members, and it is a commercial proposition that is likely to gain the Court’s approval if passed by the necessary majorities at that meeting, then orders should be made by the Court under s 411(1) of the Act: Re Foundation Healthcare Ltd (2002) 42 ACSR 252; [2002] FCA 742 at [36] (French J).

STATUTORY REQUIREMENTS

25    The evidence establishes that the statutory requirements relevant to making an order under s 411(1) of the Act have been met.

The Scheme is an arrangement between a Part 5.1 body and its members

26    GPN AUS is a “Part 5.1” body being a company registered under the Act: s 9.

27    The word “arrangement” is of wide import and extends to any subject matter that may be agreed between the company and its members: Re Foundation Healthcare at [39]; Re OPUS Group Limited [2018] FCA 959 at [16] (Banks-Smith J). As the above overview of its terms makes clear, the Scheme satisfies the statutory criterion of “arrangement”.

28    The “arrangement” is between GPN AUS and its members. For the reasons outlined at [43] to [47] below, I do not consider that the proposed treatment of ineligible foreign shareholders, option or warrant holders under the Scheme creates separate classes of members for the purposes of s 411(1) of the Act. There is a single class of shareholders, and all members have equivalent rights under the Scheme.

Originating process and supporting affidavits

29    GPN AUS made the application for an order convening the Scheme Meeting in a summary way: c.f., Act, s 411(1).

30    The affidavit filed with the originating process annexed both a company search for GPN AUS, and the Scheme Implementation Deed as contemplated by the Schemes of Arrangement General Practice Note (GPN-SOA) at [3(b)].

31    The affidavits subsequently filed on behalf of the company supplemented that evidence. Of present relevance, this included an affidavit naming Dr Hirst and Mr Palte as the proposed chair, and alternative chair, for the Scheme Meeting, confirming their willingness to act in those roles and their previous relationships and dealings with GPN AUS. In each case, those previous relationships and dealings comprise GPN AUS shares and options held by Dr Hirst and Mr Palte and fees they receive with respect to various roles they hold in the company. The evidence confirms that, beyond those already mentioned, Dr Hirst and Mr Palte have no other previous relationships or dealings with GPN AUS, or any other person or entity interested in the Scheme and no interest or obligation that may give rise to a conflict of interest.

32    I am prepared to dispense with compliance with r 2.41 of the Rules given the totality of the evidence filed in support of the originating process. I am also satisfied, based on the affidavit material outlined in the preceding paragraph, that GPN AUS has complied with r 3.2(a) and (b) of the Rules.

ASIC

33    ASIC was given 14 days’ notice of the hearing of the application. I am satisfied, given the terms of the preliminary letter, that ASIC had a reasonable opportunity to examine the terms of the Scheme of Arrangement and draft explanatory statement and make submissions to the Court with respect to that arrangement and document.

Draft explanatory statement

34    I am satisfied that the draft explanatory statement included in the draft scheme booklet meets the disclosure requirements of s 412(1) of the Act and reg 5.1.01 and Sch 8 of the Regulations. This is for three reasons.

35    First, the draft explanatory statement explains the effect of the Scheme: Act, s 412(1)(a)(i). This specifically includes the material interests of GPN AUS directors and the effect on those interests of the Scheme insofar as it is different from the effect on the like interests of other persons. Those material interests are stated in the draft explanatory statement to comprise GPN AUS shares and options. The precise holdings of each director are identified in the document. The draft explanatory statement also outlines that Dr Hirst holds one GPN USA share, which is proposed to be bought back and cancelled by GPN USA following implementation of the Scheme.

36    Second, the draft explanatory statement sets out the information prescribed by reg 5.1.01 and Sch 8 of the Regulations: Act, s 412(1)(a)(ii). This includes, in addition to the information detailed immediately above, the unanimous recommendation of the directors of GPN AUS that members vote in favour of the Scheme and other information material to making a decision in relation to the Scheme, including the risk factors. Each material statement in the draft scheme booklet, including the draft explanatory statement, has been through a verification process under the oversight of the due diligence committee.

37    Third, the draft explanatory statement is accompanied by additional information in the draft scheme booklet relevant to a decision by GPN AUS shareholders whether to vote in favour of the Scheme. Amongst that additional information is the draft independent expert report. At the hearing, counsel for GPN AUS confirmed that the report will be finalised before the scheme booklet is registered with ASIC and that any material changes to its contents would be brought to the attention of the Court. Instructions were also obtained to make the further amendment to the draft explanatory statement referred to in Order 2(b) to ensure that its language aligned with that in the draft independent expert report.

38    It is also apt to note that the draft explanatory statement is to be lodged with ASIC for registration before being sent to GPN AUS shareholders: Act, s 412(6). ASIC must not register the draft explanatory statement unless it appears to comply with the Act and ASIC is of the opinion that the statement does not contain any matter that is false in a material particular or materially misleading in the form or context in which it appears: Act, s 412(8).

DISCRETION

39    I am satisfied that it is appropriate to exercise the discretion to make the orders sought under s 411(1) for the following reasons.

The Scheme is fit for consideration

40    GPN AUS submit, and I accept, that the Scheme is fit for consideration by the company’s members.

Particular matters

41    The Court will scrutinise the terms of the proposed arrangement to satisfy itself that there is no unfairness that would be likely to preclude approval of the Scheme: Re Japara [41]. GPN AUS drew the following matters to my attention in this regard:

(a)    performance risk;

(b)    options and warrants;

(c)    ineligible foreign shareholders; and

(d)    a matter raised by ASIC in relation to the GPN AUS shareholder information line.

Performance risk

42    As GPN USA is not a party to the Scheme it is not bound by its terms. That performance risk is addressed in two ways. First, as outlined at [10(b)] above, on implementation of the Scheme, the sequence of transactions is that GPN USA will provide the Scheme Consideration and GPN USA will acquire the Scheme Shares. Second, the deed poll binds GPN USA to perform the actions attributed to it under the Scheme. Relevantly, this includes issuing the Scheme Consideration to the Scheme Shareholders. Given those measures, I am satisfied that the performance risk does not give rise to a likelihood that the Court would refuse to approve the Scheme at the at the hearing of the application referred to at [18(b)] above (second hearing).

Options and warrants

43    The Scheme provides that the holders of GPN AUS options and warrants will be offered replacement options or warrants in GPN USA under an “Options Exchange Agreement” or “Warrants Exchange Agreement” (as applicable). The Scheme Implementation Deed provides that those agreements are to be entered into by 8:00 a.m. on the day of the second hearing. The exercise price of the options and warrants issued by GPN USA will remain the same, but the exercise right will be one tenth of the existing exercise right to reflect the one for 10 exchange of shares under the Scheme. The net effect is to place GPN AUS employee share option and warrant holders in an equivalent position in GPN USA.

44    The proposed treatment of GPN AUS option and warrant holders under the Scheme is not so dissimilar to that of GPN AUS shareholders “as to make it impossible for them to consult together with a view to their common interest”: Re Healthscope Ltd (2019) 139 ACSR 608; [2019] FCA 542 at [107] (Beach J). The holders of options and warrants will receive equivalent consideration under the Scheme as Scheme Shareholders. It follows that I am satisfied that the proposed treatment of the holders of GPN AUS options and warrants do not constitute a separate class for the purposes of voting on the Scheme and a separate class meeting for them is not necessary. Moreover, I am satisfied that their proposed treatment does not give rise to a likelihood that the Court would decline to approve the Scheme at the second hearing.

Ineligible foreign shareholders

45    A Scheme Shareholder whose address is in a place other than Australia and its external territories, the European Union, Hong Kong, the Netherlands, New Zealand, Singapore, Switzerland, the United Kingdon and the USA is an “ineligible foreign shareholder” for the purposes of the Scheme unless GPN AUS and GPN USA (each acting reasonably) determine that it is lawful and not unduly onerous or impracticable to issue them with GPN USA shares. Under the Scheme, the GPN USA shares to which the ineligible foreign shareholder would otherwise become entitled will be sold at a price reasonably determined by a sale agent nominated by GPN AUS and the proceeds of that sale will be paid to the ineligible foreign shareholder (after deducting any applicable stamp duty or other costs, taxes or charges).

46    There are presently no ineligible foreign shareholders.

47    Ineligible foreign shareholders are not treated identically to GPN AUS shareholders, option and warrant holders under the Scheme. Nonetheless, there remains a sufficient “community of interest” between them: Re Amcor Limited [2019] FCA 346 at [42]-[44] (Beach J). Any ineligible foreign shareholders will receive the same value under the Scheme, albeit in cash as opposed to GPN USA shares. The differentiation in its formal effect – between scrip consideration and cash – does not destroy the ability of any ineligible foreign shareholders to “consult together in a common interest” with the holders of GPN AUS shares, options and warrants: Re Hills Motorway (2002) 43 ACSR 101; [2002] NSWSC 897 at [12] (Barrett J). As such, ineligible foreign shareholders do not constitute a separate class of members for the purposes of the Scheme. Further, I am satisfied that their proposed treatment does not give rise to a likelihood that the Court would decline to approve the Scheme at the second hearing.

GPN AUS Shareholder Line

48    Included in the draft scheme booklet are the details of a shareholder information line that GPN AUS shareholders can telephone to ask any questions about the Scheme. At the request of ASIC, counsel informed me that the shareholder information line will be operated by the company’s CFO, James Selkirk. At ASIC’s further request, GPN AUS, by its solicitors, has agreed to keep a detailed record of any calls on the shareholder information line including the questions asked, and the answers given. The purpose of such a record is to enable ASIC to verify, if it elects to do so, that any information provided by means of the shareholder information line accords with the scheme booklet.

49    Any controversy about the information provided to GPN AUS shareholders through the shareholder information line is a matter to be addressed at the second hearing: Re Vonex Limited [2024] NSWSC 1075 at [19]-[24] (Black CJ); see also Re Hills at [19]. The agreement to keep a detailed record of any telephone calls on the shareholder information line enables any such issue to be identified for the purposes of that hearing. The proposal that Mr Selkirk operate the shareholder information line does not, in those circumstances, provide a reason not to convene the Scheme Meeting: Re Vonex at [24].

Scheme is otherwise fit for consideration by the members

50    The Scheme does not otherwise give rise to any issue that would unquestionably lead to its refusal at the second hearing or appear to be “so blatantly unfair or otherwise inappropriate that it should be stopped in its tracks”: Re Amcor Limited at [47] and Re Foundation Healthcare at [44].

51    Material, in this respect, is the inclusion in the draft scheme booklet of GPN AUS directors’ unanimous recommendation that the company’s members vote in favour of the Scheme and a statement that the directors intend to do so in respect of GPN AUS shares that they own or control. There is also the draft independent expert report, which states that the Scheme is in the best interests of GPN AUS shareholders as a whole in the absence of an alternative proposal or any further information.

The members are properly informed

52    GPN AUS submit, and I accept, that the members are to be properly informed as to the nature of the Scheme before the Scheme Meeting.

53    The prescription of the contents of the explanatory statement in s 412(1) of the Act and Sch 8 of the Regulations ordinarily provides guidance to the Court in assessing the adequacy of the information to be provided to shareholders, in a context where such applications are made in a summary way: Re Japara at [74]-[75]. Accordingly, if the Court is satisfied that the statutory disclosure requirements are met, it will ordinarily be satisfied that the information to be provided to shareholders is adequate for the purposes of the exercise of the discretion under s 411(1) to convene a meeting: ibid.

54    As outlined at [34] to [37] above, the statutory disclosure requirements with respect to the draft explanatory statement have been met. In addition, all material statements relating to GPN AUS in the draft scheme booklet have been through a verification process under the supervision of the due diligence committee such that the Court can be satisfied that it is accurate and that it is not misleading or deceptive, including by omission. Given these matters, and the inclusion in the draft scheme booklet of the draft independent expert report, I am satisfied that the information provided to GPN AUS shareholders is adequate for the purposes of the exercise of the discretion to convene a Scheme Meeting.

DISPOSITION

55    For the reasons set out above, on 30 April 2025, I made the order sought by GPN AUS to convene the Scheme Meeting together with ancillary orders, including those relating to its conduct and notification of the second hearing should the Scheme be approved by the prescribed majority at the Scheme Meeting.

SLIP RULE

56    Following making the orders on 30 April 2025, it became apparent that the name of Dr Timothy Hirst in Order 5 had been misspelt.

57    The Court may, on its own motion, correct an error arising from an accidental slip or omission: Tropicana Ltd v Australasia Corporate Services Pty Ltd [2011] FCA 684 at [16] (Gordon J) in relation to O 35, r 7(3) of the Federal Court Rules 1979 (Cth) which referred to a “clerical mistake in a judgment or order”. Such an order operates nunc pro tunc; it corrects the earlier order, and speaks from the date of the earlier order, which then operates with full force as corrected: Elyard Corporation Pty Ltd v DBB Needham Sydney Pty Ltd (1995) 61 FCR 385 at 391 (Lockhart J) in relation to O 35, r 7(3).

58    I am satisfied that this is an appropriate case to exercise the power under r 39.05(g) of the Federal Court Rules 2011 (Cth) to correct the spelling of Dr Timothy Hirst in Order 5 made on 30 April 2025. That spelling error is a clerical mistake within the meaning of r 39.05(g); it was not the consequence of a deliberate decision: c.f., Ivanhoe Gold Corporation Ltd v Symonds (1906) 4 CLR 642; [1906] HCA 71 at 669 (Higgins J).

Associate:    

Dated:    16 May 2025