CP Ventures Ltd v Australian Securities and Investments Commission
[1999] WASC 175
CP VENTURES LTD -v- AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION [1999] WASC 175
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASC 175 | |
| Case No: | CIV:1882/1999 | 12 AUGUST 1999 | |
| Coram: | STEYTLER J | 12/08/99 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application for admission to the Expedited List refused | ||
| PDF Version |
| Parties: | CP VENTURES LTD AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION |
Catchwords: | Practice and procedure Expedited List Application for admission to list Plaintiff seeking declarations in relation to matters referred by defendant to the Corporations and Securities Panel in accordance with Corporations Law s 733(1) Effect of declarations to determine whether justifiable basis for reference to Corporations and Securities Panel Corporations Law provides alternative procedure Could be dealt with by Corporations and Securities Panel Application for entry to Expedited List refused |
Legislation: | Corporations Law s 733(1) |
Case References: | Nil Brierley Investments Ltd v Australian Securities Commission (1997) 24 ACSR 629 Dormer v Solo Investments Pty Ltd [1974] 1 NSWLR 428 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 Josephson v Walker (1914) 18 CLR 691 Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 Sankey v Whitlam (1978) 142 CLR 1 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Defendant
Catchwords:
Practice and procedure - Expedited List - Application for admission to list - Plaintiff seeking declarations in relation to matters referred by defendant to the Corporations and Securities Panel in accordance with Corporations Law s 733(1) - Effect of declarations to determine whether justifiable basis for reference to Corporations and Securities Panel - Corporations Law provides alternative procedure - Could be dealt with by Corporations and Securities Panel - Application for entry to Expedited List refused
Legislation:
Corporations Law s 733(1)
(Page 2)
Result:
Application for admission to the Expedited List refused
Representation:
Counsel:
Plaintiff : Mr M L Bennett
Defendant : Mr C G Colvin
Solicitors:
Plaintiff : Bennett & Co
Defendant : Michael Gething
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Brierley Investments Ltd v Australian Securities Commission (1997) 24 ACSR 629
Dormer v Solo Investments Pty Ltd [1974] 1 NSWLR 428
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421
Josephson v Walker (1914) 18 CLR 691
Precision Data Holdings Ltd v Wills (1991) 173 CLR 167
Sankey v Whitlam (1978) 142 CLR 1
(Page 3)
1 STEYTLER J: This is an application for admission to the expedited list brought by the plaintiff, CP Ventures Ltd, in an action which it has instituted against the Australian Securities and Investments Commission ("the Commission"). The writ issued by the plaintiff bears an endorsement of claim which suggests that the action arises out of the conduct of the Commission on 9 August 1999 in purporting to apply to the Corporations and Securities Panel ("the Panel"), pursuant to s 733(1) of the Corporations Law, for relief in relation to conduct of the plaintiff in April, May and June this year in acquiring shares in a public company, Wesfi Ltd ("Wesfi").
2 Section 733(1) of the Corporations Law provides that where it appears to the Commission that unacceptable circumstances have, or may have, occurred in relation, inter alia, to an acquisition of shares in a company, the Commission may apply to the Panel for a declaration under s 733(3) in relation to the acquisition.
3 The plaintiff claims a variety of declarations which, if made, would have the effect of establishing that there have been no unacceptable circumstances in respect of the conduct referred to in the endorsement of claim.
4 The application is supported by an affidavit from the plaintiff's solicitors in which it is said that on or about 27 April 1999 Blend Investments Pty Ltd ("Blend Investments"), a wholly-owned subsidiary of Bristile Ltd ("Bristile"), issued a Part A statement and offer documents to all shareholders of Wesfi, offering to acquire all of the issued shares in Wesfi. Correspondence exhibited to the affidavit suggests that the Commission has a concern that the plaintiff, being, it says, a company closely connected with Bristile, has acquired 1.9 per cent of shares in Wesfi and sold them into the Blend Investments bid and that it proposes to acquire up to another 9 or 10 per cent of those shares for the same purpose in circumstances which, in the Commission's opinion, are unacceptable for a variety of stated reasons. It is this concern which has led it to make the application to the Panel.
5 Section 733(3) of the Corporations Law provides that, where on an application under subs (1) the Panel is satisfied that unacceptable circumstances have occurred in relation to an acquisition of shares in the company or as a result of conduct engaged in by a person in relation to shares in or the affairs of the company, and, having regard to various matters which are referred to in s 731 and any other matters the Panel considers relevant, that it is in the public interest to do so, the Panel may
(Page 4)
- by writing declare the acquisition to have been an unacceptable acquisition or the conduct to have been unacceptable conduct, as the case may be. Section 734(2) of the Corporations Law provides for various orders which might be made by the Panel following upon the making of such a declaration.
6 The effect of the relief sought by the plaintiff is that this Court is asked, in effect, essentially to determine whether there is any arguable case of unacceptable circumstances for the purposes of s 733 of the Corporations Law and consequently whether there was any justifiable basis for the reference by the Commission to the Panel. That requires the Court first to consider whether it has jurisdiction to embark upon that exercise bearing in mind the jurisdiction conferred upon the Panel by the provisions of the Corporations Law to which I have referred. Then, if the Court does have that jurisdiction, it must next decide whether, as a matter of discretion, it should exercise it, having regard again for the statutory scheme and the purpose underlying the setting up of the Panel. If satisfied as to the existence of that jurisdiction (and counsel for the Commission submits that there is none) and if satisfied, as a matter of discretion, that it should exercise it (and the Commission submits that it should not) then the Court would, in effect, be determining the very questions which the Commission has submitted to the Panel for its determination.
7 I am, for the purpose of considering the application which has, today, been brought for the expedition of the action, prepared to assume that there is an arguable case that this Court has jurisdiction to embark upon the exercise upon which it is invited to embark, and that there is a prospect that the court would exercise a discretion in the manner in which it has been invited to do so by the plaintiff.
8 However even if it be assumed that this Court has jurisdiction to embark upon an exercise of this kind and that it would be prepared to exercise that jurisdiction I am not satisfied that this is a case in which expedition should be ordered. It seems to me that there is a procedure provided for by the Corporations Law which can readily and appropriately be followed in the circumstances of this case. If the plaintiff is right in its contentions that there should not have been any reference by the Commission to the Panel, that is a matter which it is able to raise before the Panel itself. Nothing has been pointed to by Mr Bennett, who appeared on behalf of the plaintiff, which persuades me that this Court should, even if it could, as a matter of urgency decide, in effect, the various questions which have been referred to the Panel for its determination in accordance with the legislative scheme.
(Page 5)
9 It seems to that if the Panel should embark upon the reference, as it seems it has already decided to do, then arguments can as well be made to it as to this Court as to why declarations of unacceptable conduct should not be made. Should the plaintiff be dissatisfied with the decision at which the Panel ultimately arrives, it will be open to it then to have that decision reviewed.
10 In all of those circumstances, it seems to me that the matter is not one which should, as a matter of discretion, appropriately be entered in this list and I propose to dismiss the application for expedition.
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