Repatriation Commission v Gorton - [2001] FCA 119

FEDERAL COURT OF AUSTRALIA
St Barbara Mines Ltd v Australian Securities & Investments Commission
[2001] FCA 119
CORPORATIONS LAW – takeover bid proposal – application for review of decision of the Commission not to accept lodgment of bid documents – effect of s 659B(1) of the Corporations Law on the jurisdiction of the Court – role of the Corporations and Securities Panel – whether court proceedings “in relation to” a takeover bid.
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Corporations Law ss 655A, 656A, 659AA, 659B
Chief Executive Officer of Customs v AMI Toyota Ltd [2000] FCA 1343 cited
First Provincial Building Society Ltd v Commissioner of Taxation (1995) 56 FCR 320 cited
Troy Resources NL v Taipan Resources NL (2000) 35 ACSR 663 referred to
ST BARBARA MINES LIMITED v
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION AND ANOR
N 134 of 2001
HILL J
15 FEBRUARY 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 134 OF 2001

BETWEEN:

ST BARBARA MINES LIMITED
ACN 009 165 066
APPLICANT

AND:

AUSTRALIAN SECURITIES AND
INVESTMENTS COMMISSION
FIRST RESPONDENT

TROY RESOURCES NL
SECOND RESPONDENT

JUDGE:

HILL J

DATE:

15 FEBRUARY 2001

PLACE:

SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

Before the Court is an application brought by St Barbara Mines Limited (“St Barbara”) pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977 (“the ADJR Act”) to review a decision of the respondent Australian Securities and Investments Commission (“the Commission”) to refuse to accept for registration bid documents which St Barbara had sought to lodge with the Commission relating to a proposed takeover offer. St Barbara intended to make that offer with respect to ordinary fully paid and partly paid shares in Taipan Resources NL (“Taipan”).
The substance of the application is that the Commission erred in law in the view it took of the question whether ordinary and partly paid shares comprised shares of the one class or shares of different classes. St Barbara had apparently prepared to institute proceedings in the Supreme Court of New South Wales but then reached the view that that Court did not have jurisdiction and that the proceedings should be brought under the provisions of the ADJR Act on the basis of which this Court would, at least ordinarily, have jurisdiction.
However, the Commission objects to the jurisdiction of the Court and in so doing relies upon s 659B(1) of the Corporations Law. That section reads:
“Only:
(a) ASIC; or
(b)another public authority of the Commonwealth or a State;
may commence court proceedings in relation to a takeover bid, or proposed takeover bid, before the end of the bid period.”
It is common ground that there is a period which satisfies the definition of “bid period” and that this period has not yet ended. Reference should also be made to s 659AA of the Corporations Law which provides:
“The object of sections 659B and 659C is to make the Panel the main forum for resolving disputes about a…

Grounds of appeal

[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.

Continue reading Repatriation Commission v Gorton

Details

AGLC: Repatriation Commission v Gorton [2001] FCA 119
Case: [2001] FCA 119
Decision Date: 15 FEBRUARY 2001

CaseChat Overview and Summary

The case of St Barbara Mines Limited v Australian Securities and Investments Commission involved a dispute regarding a proposed takeover bid. St Barbara Mines Limited sought to lodge bid documents with the Australian Securities and Investments Commission (ASIC) for a takeover of Taipan Resources NL. ASIC refused to accept the bid documents, leading St Barbara to seek judicial review of ASIC's decision under the Administrative Decisions (Judicial Review) Act 1977. ASIC argued that the Federal Court lacked jurisdiction due to section 659B(1) of the Corporations Law, which restricts court proceedings relating to takeover bids until the bid period ends.

The primary legal issue was whether the Federal Court had jurisdiction to review ASIC's decision to refuse the lodgment of the bid documents. The court needed to determine the scope of section 659B(1) of the Corporations Law, specifically whether the term "in relation to a takeover bid" encompassed proceedings about the non-acceptance of bid documents. Additionally, the court had to consider the role of the Corporations and Securities Panel in resolving takeover disputes and the legislative intent behind section 659B, which aimed to make the Panel the primary forum for such disputes until the end of the bid period.

Justice Hill held that section 659B(1) of the Corporations Law did indeed exclude the Federal Court's jurisdiction to hear St Barbara's application for judicial review. The court reasoned that the legislative policy behind section 659B was to direct takeover disputes to the Panel during the bid period. Given that St Barbara had the right to seek a review of ASIC's decision from the Panel, the Federal Court was not the appropriate forum for this matter. Consequently, the court dismissed St Barbara's application for judicial review on the grounds of lack of jurisdiction. The court did not address the issue of whether relief should have been granted under the ADJR Act due to the absence of jurisdiction.

Orders