QUEENSLAND NORTH AUSTRALIA PTY LTD, CLOSERIDGE PTY LTD (ACN 010 560 157) and CLIVE FREDERICK PALMER v TAKEOVERS PANEL, THE PRESIDENT'S CLUB LIMITED (ACN 010 593 263), PRESIDENT, TAKEOVERS PANEL and AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
File number:
QUD 300 of 2014
Judges:
DOWSETT, MIDDLETON AND GILMOUR JJ
Date of judgment:
4 September 2015
Catchwords:
PRACTICE AND PROCEDURE – application for a stay of orders setting aside a declaration of unacceptable circumstances made by the Takeovers Panel – where proposed stay is to allow ASIC’s consideration as to whether or not to seek interim orders from the Takeovers Panel pursuant to s 657E of the Corporations Act 2001 (Cth) in order to maintain the status quo until further hearing – where no indication of any intention to seek or make interim orders – where, prima facie, the Takeovers Panel has no power to make orders without extension of time – where parties have had an adequate opportunity to consider whether or not to seek interim orders.
COSTS – the Court’s discretion to award costs – where costs may be made in favour of, or against, a party whether or not that party is successful in the proceedings pursuant to s 43(3)(e) of the Federal Court of Australia Act 1976 (Cth) – whether costs should “follow the event”, depending on a party’s success or failure on the overall outcome, or be calculated on an “issue by issue approach” – the relevance of the late abandonment of grounds of appeal and failure on some or all of the issues – the role of ASIC in intervening “to protect the public interest” – apportionment of costs.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Queensland North Australia Pty Ltd v Takeovers Panel (No 2) [2015] FCAFC 128
Case
[2015] FCAFC 128
Decision Date
CaseChat Overview and Summary
The case between Queensland North Australia Pty Ltd and the Takeovers Panel, also involving the Australian Securities and Investments Commission (ASIC), was heard by the court. This case arose from a dispute regarding the legality of orders issued by the Takeovers Panel, which Queensland North contested. The Takeovers Panel had declared certain circumstances to be unacceptable and issued orders, which Queensland North challenged as beyond the Panel's authority. The court's task was to determine the legality of the Panel's actions and whether the orders should be stayed pending further consideration by ASIC.
The central legal issues before the court involved the scope of the Takeovers Panel's authority to issue the orders in question and the appropriate procedure for staying those orders. The court had to examine whether the Panel's orders exceeded its statutory powers and whether the proposed stay of the orders was justified. Additionally, the court needed to address the discretion in awarding costs, considering whether the costs should follow the event or be assessed on an issue-by-issue basis, and the role of ASIC in the proceedings.
In its decision, the court found that the Takeovers Panel had indeed overstepped its authority in issuing the orders, leading to the quashing of those orders. The court also held that the proposed stay was not warranted as there was no indication that interim orders would be sought. Regarding costs, the court ruled that ASIC and the Club should be jointly and severally liable for Queensland North's costs, as both had opposed the application at first instance and on appeal. The court further ordered that the second and fourth respondents pay 80% of the appellant's costs of the appeal, along with all costs at first instance, with their liability being joint and several.
The final orders of the court included allowing the appeal, setting aside the orders made by Collier J and the Takeovers Panel, and remitting the matter to the Takeovers Panel for rehearing. Additionally, the second and fourth respondents were ordered to pay the appellant's costs, with specific percentages and joint and several liability as detailed. The parties were granted liberty to apply as they may be advised, with the entry of orders to be handled in accordance with Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. the appeal be allowed;
2. the orders of Collier J made on 5 June 2014 be set aside;
3. the declaration of unacceptable circumstances made by the Takeovers Panel on 24 July 2012, and the orders of the Takeovers Panel made on 27 July 2012, be set aside;
4. the matter be remitted to the Takeovers Panel to be heard and determined according to law;
5. the second respondent and the fourth respondent pay:
(a) the appellant’s costs at first instance; and
(b) 80% of the appellant’s costs of the appeal;
such costs to be taxed on a party-party basis unless otherwise agreed, with the second and fourth respondents’ liability for such costs being joint and several; and
6. the parties have liberty to apply as they may be advised.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
As to the apportionment of costs between the Club and ASIC, the latter’s submission has no regard to the position of Queensland North. The proposed order would result in its having to recover its costs from two sources rather than one. It would also be exposed to the risk of not recovering costs awarded against the Club, without having recourse to ASIC. We do not know if there is any reason to doubt the Club’s capacity to pay, but as far as we can see, the only possible reason for ASIC’s concern must be a fear that if it meets all of the costs awarded to Queensland North, it will not be able to recover a half share of the relevant amount from the Club. Both resisted Queensland North’s application at first instance and on appeal. They should be jointly and severally liable for its costs.CONCLUSION We order that the second and fourth respondents pay 80% of the appellants’ costs of the appeal, and the whole of their costs at first instance, the second and fourth respondents’ liability being joint and several.