Chapmans Ltd v Australian Stock Exchange Ltd

[1995] FCA 113

IN THE FEDERAL COURT OF AUSTRALIA )
  )
VICTORIA DISTRICT REGISTRY       )        No. NG 20 of 1994
  )
GENERAL DIVISION                 )

B E T W E E N:

CHAPMANS LIMITED
  Applicant
  - and -

AUSTRALIAN STOCK EXCHANGE LIMITED
  Respondent

JUDGE:    Heerey J

DATE:     24 February 1995

PLACE:    Melbourne (heard in Sydney)

EX TEMPORE REASONS FOR JUDGMENT

I need not traverse the history of this matter.  I express my appreciation to counsel for their helpful and careful arguments.  It seems to me at least arguable that one of the decisions sought to be reviewed by this Court, namely, the decision to de-list, made on 26 November 1993, remains effectively on foot.  In the words of the Australian Stock Exchange letter of 26 November 1993, it is that decision which is to "be reviewed" by the National Listing Committee upon the company's request. 

It is true, as senior counsel for the respondent stresses, that the hearing which the respondent proposes to conduct on 1 March next will deal with matters which have occurred since 26 November 1993.  But equally the hearing will be concerned with matters prior to that date.  It would be surprising if that were not the case, since de-listing is a serious step and presumably,the respondent will want to point to rational reasons which led it to make the decision in the first place.  I think the present case is arguably distinguishable from Calvin v Carr ([990] AC 574 at 593 in that the proposed procedure by way of internal appeal is not something set out in the rules of the body and to which the parties:

"should fairly be taken to have accepted when they joined the association."

In any case, the Privy Council's opinion makes it clear that the effect of internal appeals on the applicability of judicial review on natural justice grounds is one for careful analysis in the light of the circumstances of the particular case and not the sort of matter in which it could readily be said that no triable issue arises.  I do not think it is clear beyond argument that the respondent could proceed with its proposed hearing on 1 March free of the risk of any infection of legal error as a result of what happened up to and including 26 November 1993.

As to balance of convenience, the company's shares have been suspended since August 1992 and it has been under threat of de-listing since November 1993.  The respondent has proffered no evidence of public or private harm that has resulted from the company's status over that period.  I am not prepared to infer that there is any risk of such harm occurring between now and the hearing and determination of the present proceeding, the trial of which is fixed for 10 May 1995.

The alleged status enjoyed by suspended shares I regard as purely speculative.  It is common ground that the company is insolvent, but the respondent's position as to costs is protected by an order for security for costs with which the company has so far complied.  It is true that leaves a potential liability under the undertaking for damages but, in the absence of any formulation as to how such damages would arise and what their quantum might be I do not think that element should weigh against the grant of an injunction.

I will grant an injunction in terms of the notice of motion until the hearing and determination of this proceeding. 

I order that the costs of the motion be reserved.  I make an order abridging the time of service in paragraph 1.

I certify that this and the preceding two (2) pages are a true copy of the reasons for judgment of his Honour Mr Justice Heerey.

Dated:

Associate

Appearances

Counsel for the applicant:       Mr E Strasser

Solicitor for the applicant:     Rummery Glynn Chaffey

Counsel for the respondent:      Mr J Hilton

Solicitor for the respondent:     Allen Allen & Hemsley

Date of hearing:                 24 February 1995