Takeovers Panel Annual Report 2008-2009 - Section 2: The Panel

Section 2 – The Panel

Introduction

During a takeover bid, the Panel is the main forum for dealing with issues that arise.5 Only ASIC and other public bodies can commence court proceedings during the bid period.6

Role

The Panel has two main roles:

  • making declarations of unacceptable circumstances under section 657A, and orders under section 657D to remedy those circumstances; and
  • reviewing decisions of ASIC under section 656A (modifications of, or exemptions from, Chapter 6) and, during a takeover bid, section 673 (modifications of, or exemptions from, Chapter 6C).

To support these roles the Panel issues Guidance Notes (available on its website under 'Guidance Notes'), and publishes its reasons (available on its website under 'Reasons for Decisions').

Unacceptable circumstances

The Panel's main work involves deciding applications for declarations of unacceptable circumstances. The Panel must consider the principles in section 602, the provisions of the takeovers chapter and the public interest. In the current period there were 25 applications for a declaration at first instance.

If the Panel finds unacceptable circumstances, it may make orders to protect the rights of persons affected by the circumstances or to ensure, as far as possible, that the takeover proceeds as if the unacceptable circumstances had not occurred.

The Panel reviews decisions of the Panel made at first instance (in relation to declarations of unacceptable circumstances).7 The review is a merits review. A review Panel comprises three different members to an initial Panel. There may be only one review of a Panel decision. In the current period there were four applications for review.

Review of ASIC decisions

The Panel may review ASIC decisions.8 In the current period there was one review of an ASIC decision brought to the Panel.

Other reviews

The Panel has an additional review function if a matter is referred from the Court.9 There were none in the current period.

Executive

The role of the executive is to assist the Panel in making consistent, timely and commercial decisions. It includes:

  • administrative and legal support for Panel members;
  • liaison with market practitioners, ASIC's takeovers staff and ASX; and
  • providing an interface to prospective parties (for example, discussing issues and providing a perspective on takeovers policy as it may apply to current takeovers).

Portrait photo of Allan Bulman, Director of the Takeovers Panel
Mr Allan Bulman, Director

Portrait photo of Alan Shaw, Counsel of the Takeovers Panel
Mr Alan Shaw, Counsel

The Panel's executive comprises:

  • Director, Mr Allan Bulman;
  • Counsel, Mr Alan Shaw;
  • Lawyer, Mr Nirangjan Nagarajah;
  • legal secondees. The Panel's normal process is to staff its office, in part, with secondees from major law firms or other professional firms around Australia. The secondees have ably assisted the executive. The Panel appreciates their contributions and the willing support of their firms. During the year, the secondees included Mr Andrew Hensher (Chang, Pistilli & Simmons, Sydney), Mr Sean Huber (Corrs Chambers Westgarth, Sydney) and Mr Emin Altiparmak (Allens Arthur Robinson, Melbourne). At 30 June 2009, the secondee was Ms Marissa Bendyk (Piper Alderman, Adelaide).
  • two administrative staff: Ms Karolina Danger as Office Manager and Ms Rebecca Banhelyi as Executive Assistant.

Group photo of the Executive of the Takeovers Panel

Simon McKeon with the Executive: (Standing L to R) Allan Bulman, Alan Shaw, Simon McKeon, Nirangjan Nagarajah, Emin Altiparmak,
(Seated L to R), Marissa Bendyk, Karolina Danger and Rebecca Banhelyi.

Office

The Panel maintains an office in Melbourne. On 16 March 2009, the Panel moved premises from Level 47, 80 Collins Street to Level 10, 63 Exhibition Street, Melbourne. The Panel's current lease in Exhibition Street expires in January 2013.

During 2008-09, the Panel provided the use of its offices and conference room to Treasury when they required facilities in Melbourne.

Members

Appointment of members

At 30 June 2009 the Panel had 53 members. Members are appointed by the Governor-General on the nomination of the Minister.10 State Ministers may give the Minister submissions on nominations.

Members are nominated on the basis of their knowledge and experience in one or more of the following fields:

  • business;
  • administration of companies;
  • financial markets;
  • financial products and financial services;
  • law;
  • economics; and
  • accounting.

As well as a mix of expertise, geographical representation and gender representation is considered.

All members are appointed on a part-time basis, usually for three years. They may be re-appointed.

In the current period, nine members were re-appointed:

  • Mr Martin Alciaturi;
  • Mr Robert Johanson;
  • Mr John Keeves;
  • Mr Mark Paganin;
  • Professor Ian Ramsay;
  • Ms Jennifer Seabrook;
  • Mr Simon Withers;
  • Ms Karen Wood; and
  • Ms Heather Zampatti.

In the current period, five new members were appointed:

  • Mr David Bennett AC QC — Barrister, Sydney;
  • Mr John M Green — Company Director, Sydney;
  • Mr Peter Hay — Chairman of the Advisory Board at Lazard Carnegie Wylie, Melbourne;
  • Ms Francesca Lee — General Counsel and Company Secretary of OZ Minerals Ltd, Melbourne; and
  • Ms Sophie Mitchell — Director of Special Projects for ABN AMRO Morgans, Brisbane.

In the current period, four members completed their terms:

  • Ms Robyn Ahern;
  • Ms Elizabeth Alexander AM;
  • Mr Brett Heading; and
  • Ms Marian Micalizzi.

Members' biographies

Simon McKeon (President) — Executive Chairman, Macquarie Group's Melbourne office (President since 1999), Chairman of a number of charities and organisations and a member of the Strategic Advisory Board of the University of Melbourne's Graduate Law Program.

Martin Alciaturi — Head of Corporate Finance WA, Macquarie Group (Member since 2006), a Chartered Accountant and a Senior Fellow of FINSIA.

Guy Alexander — Partner, Allens Arthur Robinson (Member since 2004), member of the Corporations Committee of the Business Law Section of the Law Council of Australia.

Michael Ashforth — Managing Director, Gresham Advisory Partners (Member since 2002), previously a partner at Freehill Hollingdale & Page.

Tom Bathurst QC — Barrister (Member since 2007), vice-President of the NSW Bar Association and President of the Australian Bar Association.

David Bennett AC QC — Barrister (Member since 2009), former Solicitor-General of Australia (1998-2008) and a former president of the NSW Bar Association and the Australian Bar Association.

Garry Besson — Partner, Gilbert & Tobin (Member since 2007), formerly a partner at Clayton Utz (1983-1989) and a partner at Freehills (1989-1996).

Graham Bradley (Acting President) — Chairman, HSBC Bank Australia Limited (Member since 2004), company director, formerly national managing partner of Blake Dawson and partner of McKinsey & Company.

Catherine Brenner — Company Director (Member since 2007), previously a Managing Director in the Investment Banking Group at ABN AMRO.

Geoff Brunsdon — Company Director (Member since 2007), previously Managing Director, Merrill Lynch (Australia) Limited, a Chartered Accountant, a Fellow of FINSIA and a Fellow of AICD.

Diana Chang — Partner, Chang, Pistilli & Simmons (Member since 2008), previously a partner at Atanaskovic Hartnell.

Stephen Creese — Managing Director, Rio Tinto Australia (Member since 2005).

Hamish Douglass — Chief Executive Officer, Magellan Financial Group (Member since 2005), previously Co-Head of Global Banking for Deutsche Bank AG in Australia and New Zealand.

Susan Doyle — Company Director (Member since 2005), member of the Future Fund Board of Guardians.

Paula Dwyer — Company Director (Member since 2008), a Chartered Accountant, a Fellow of the Institute of Chartered Accountants, a Fellow of AICD and a Fellow of FINSIA.

Kathleen Farrell — Consultant to Freehills (Member since 2001), company director, previously a partner with Freehill Hollingdale & Page

John Fast — Lawyer and Company Director (Member since 2005), previously Chief Legal Counsel and Head of External Affairs at BHP Billiton Limited and partner at Arnold Bloch Leibler.

John M Green — Company Director (Member since 2009), previously a Macquarie Bank Executive Director and Freehills partner, Senior Fellow of FINSIA and a Fellow of AICD.

Teresa Handicott — Partner, Corrs Chambers Westgarth (Member since 2001), a Senior Fellow of FINSIA, a member of the Law Council of Australia and AICD.

Peter Hay — Chairman of the Advisory Board, Lazard (Member since 2009), company director, previously Chief Executive Officer of Freehills.

Robert Johanson — Director, Grant Samuel (Member since 2006), Chairman Bendigo and Adelaide Bank and member of Council of University of Melbourne.

Braddon Jolley — Partner, Corrs Chambers Westgarth (Member since 2001), previously a partner at Freehills.

David Jones — Chairman, New Zealand Takeovers Panel (Member since 2007), a founding partner of Auckland law firm, Jones Young.

John Keeves — Partner, Head of Corporate, Johnson Winter & Slattery (Member since 2006), past National Chairman of the Corporations Committee of the Law Council of Australia, Senior Fellow and former Board member of FINSIA, member of CALDB.

Byron Koster — Partner, Corrs Chambers Westgarth (Member since 2004), previously a partner at the law firm Blake Dawson.

Alison Lansley — Partner, Mallesons Stephen Jaques (Member since 2001), Chairman of the Markets Policy Group of FINSIA.

Francesca Lee — General Counsel & Company Secretary, OZ Minerals Ltd (Member since 2009), previously senior roles at BHP Billiton, Rio Tinto Limited and Citibank Limited.

Irene Lee — Company Director (Member since 2001), previously Executive Director of Citicorp Investment Bank and Head of Corporate Finance at the Commonwealth Bank of Australia.

Rodd Levy — Partner, Freehills, Melbourne (Member since 2007), author of Takeovers Law and Strategy (3rd Edition, 2009) and a Senior Fellow of the Faculty of Law of the University of Melbourne.

Alastair Lucas — Vice-Chairman, Goldman Sachs JBWere (Member since 2005), deputy chair of the Market Policy Group of the FINSIA.

Andrew Lumsden — Partner, Corrs Chambers Westgarth (Member since 2002), previously Chief of Staff to the Minister for Financial Services & Regulation, the Hon Joe Hockey, MP.

Peter Mason AM — Chairman of AMP Limited (Member since 2005), company director, Senior Advisor to UBS Investment Bank.

Kevin McCann AM — Chairman, Origin Energy Limited (Member since 2001), company director, previously Chairman of Partners at Allens Arthur Robinson.

Alice McCleary — Independent Company Director (Member since 1999), Deputy Chancellor at the University of South Australia, previously a corporate tax partner at Coopers & Lybrand.

Marie McDonald — Partner, Blake Dawson (Member since 2001), joint practice head — M&A, of Blake Dawson Lawyers.

Vickki McFadden — Company Director (Member since 2008), a Member of the Advisory Board & Executive Committee, Australian School of Business, UNSW.

Sophie Mitchell — Director of Corporate & Special Projects, ABN AMRO Morgans (Member since 2009), company director.

Simon Mordant (Acting President) — Joint Chief Executive, Caliburn Partnership (Member since 1999), previously Joint Head of Corporate Finance, ABN AMRO in Australia and New Zealand.

Norman O'Bryan AM SC — Barrister (Member since 2004), a member of the Law Council of Australia, the Australian Bar Association and the International Bar Association.

John O'Sullivan — Chairman, Investment Banking Department, Credit Suisse (Australia) Limited (Member since 2005), member of the Business Council of Australia, previously General Counsel of the Commonwealth Bank of Australia and partner of Freehills.

Mark Paganin — Partner, Clayton Utz (Member since 2003), a member of the Boards of FINSIA and of the University Club of UWA.

Chris Photakis — Managing Director, Pitt Capital Partners Limited (Member since 2001), previously a Partner/Executive Director of KPMG Corporate Finance.

Ian Ramsay (Acting President) — Professor, Faculty of Law, University of Melbourne (Member since 2000), a member of CAMAC, the National Law Committee of AICD, the Corporations Committee of the Law Council of Australia.

Mike Roche — Managing Director and Head of Mergers & Acquisitions at Deutsche Bank AG, Sydney (Member since 2008).

Peter Scott — Vice Chairman, Investment Banking, UBS AG (Australia) (Member since 2002). Australia's representative on the New Zealand Takeovers Panel.

Jenny Seabrook — Special Advisor, Gresham Partners (Member since 2000), company director, a member of FINSIA's Corporate Finance Advisory Group and ASIC's External Advisory Group.

Andrew Sisson — Managing Director, Balanced Equity Management (Member since 2008).

Robert Sultan — Partner, Deacons, Melbourne (Member since 2007), a member of the Corporations Committee of the Business Law Section of the Law Council of Australia and a director of the Gourlay Charitable Trust.

Anthony Sweetman — Managing Director, Head of Mergers & Acquisitions, Australia, UBS AG (Member since 2007).

Simon Withers — Company Director (Member since 2003), previously a barrister and solicitor with Parker & Parker and a director of London merchant bank Kleinwort Benson.

Nerolie Withnall (Acting President) — Company Director (Member since 1999), a member of CAMAC and the Senate of the University of Queensland, a Fellow of AICD and previously a partner of Minter Ellison.

Karen Wood — Group Executive and Chief People Officer, BHP Billiton (Member since 2000), previously Chief Governance Officer and Company Secretary BHP Billiton, a Fellow of the Institute of Chartered Secretaries and a member of the Law Council of Australia.

Heather Zampatti — National Head of Wealth Management, Bell Potter Securities (Member since 2006), company director and member of the University of WA, Senate Committee-Strategic Resources.

Work of members

When a party makes an application, a sitting Panel of three members is appointed by the President to consider the application. In recent years, the Panel has received approximately 30 applications each year. Thus, each member is called on to sit on two matters per year, on average, subject to conflicts, workload and other factors affecting availability. Panel members participate in the development of Guidance Notes and meetings where parties provide feedback to the Panel.

The Panel also holds full day, roundtable sessions each year. Panel members value these meetings. As they reside in different cities these sessions are an opportunity for them to get together and discuss past proceedings, policy issues and market developments.

The firms of the Panel members allow their key people to devote time and resources to the Panel and they host the Panel's roundtable days each year. The Panel appreciates this support.

Legislation

The Panel operates under the Corporations Act and ASIC Act.

There have been no amendments relevant to the Panel in the current reporting period.

Litigation

There were two pieces of litigation involving the Panel in the current period:

  • Cemex Australia Pty Limited v Takeovers Panel [2009] FCAFC 78; and
  • Noble Group Limited Anor v Takeovers Panel & Ors.

CEMEX

This case arose out of CEMEX's takeover of Rinker in 2007. It was heard by the Full Court of the Federal Court of Australia (on appeal from a single judge of the same Court) on 21 May 2009. The decision of the Court at first instance, which upheld the Panel's decision, was upheld.

CEMEX Australia Pty Ltd made an off market takeover bid for Rinker Group Ltd. On 10 April 2007 it announced an improved offer and stated that its offer was its 'best and final' offer in the absence of a superior proposal. On 7 May 2007 it announced (among other things) that it would allow accepting Rinker shareholders to retain the A$0.25 final dividend that Rinker had declared on 27 April 2007.

ASIC applied for a declaration of unacceptable circumstances and an order for payment to shareholders who sold on market of the A$0.25 paid to Rinker shareholders. The initial Panel made a declaration and ordered that CEMEX pay Rinker shareholders who sold between the two announcements the equivalent of Rinker's dividend (A$0.25) per share for the net number shares disposed of during the period. CEMEX sought a review. The review Panel made a similar declaration and orders. CEMEX sought judicial review.

CEMEX claimed (among other things) in the Federal Court that the power to make a declaration was exercised improperly, or was exercised unreasonably, or that the Panel had erred in law because CEMEX had retained a discretion to pay the dividend notwithstanding the best and final statement, or that the Panel had erred in law because the best and final statement had been qualified and was not departed from.

CEMEX also claimed that the Panel did not have the power to make the orders it made, and that section 657A and section 657D were invalid as purporting to confer the judicial power of the Commonwealth on the Panel. This last claim was abandoned following the decision in Alinta.11

On 23 October 2008 Stone J dismissed CEMEX's application on all bases.12 CEMEX appealed to the Full Court.

On 30 June 2009 the Full Court (Ryan, Jacobson and Foster JJ) dismissed CEMEX's appeal.13

Noble Group

This case arose out of the Panel's proceedings in Gloucester Coal Limited 01R [2009] ATP 9.

Gloucester Coal Limited and Whitehaven Coal Limited agreed to a merger which was structured as a recommended scrip takeover by Gloucester of the larger Whitehaven. Noble Group Limited made a $4.85 cash bid for Gloucester which was conditional on the merger with Whitehaven not proceeding. Noble applied to the Panel for a declaration of unacceptable circumstances because Gloucester shareholders would not, under the structure of the merger, be given a say in relation to the transaction.

The initial Panel made a declaration of unacceptable circumstances and ordered, among other things, that the merger be subject to Gloucester shareholder approval. A review was sought by both Gloucester and Whitehaven. The review Panel also made a declaration of unacceptable circumstances, but set aside the orders of the initial Panel, instead ordering that the merger be subject to no superior proposal for Gloucester emerging.

Noble initiated proceedings in the High Court14 contending that the review Panel had fallen into 'jurisdictional error'.

Noble withdrew after it increased its bid to $7 and Gloucester announced that it considered the increased Noble bid to be a superior proposal to the merger.

Matters

The Panel resolved matters as quickly and as informally as a proper consideration of the issues permitted. Timeliness remains one of the key performance indicators for the Panel.

Appendix 3 lists the applications in the current period.

Many applications did not result in a formal decision, but were resolved by:

  • undertakings to the Panel;15 or
  • the Panel declining to conduct proceedings. Relevant factors in deciding whether to conduct proceedings include whether the circumstances complained of would give rise to a declaration of unacceptable circumstances if established, the strength of the evidence, and the remedies that might be available. The Panel does not conduct proceedings merely because an application has been made.

Issues covered by decisions

The Panel considered applications relating to an array of issues in the current period. These included:

  • Babcock & Brown Communities Group: the Panel examined the impact that the sale of management rights to a managed investment scheme in a complex stapled structure can have on the auction process for an entity.
  • Goldlink IncomePlus Limited 04 & 04R: the Panel considered the issue of 'share splitting' to take advantage of a provision that forces a bidder that has made a proportional bid for a company to purchase all the shares of a shareholder holding an unmarketable parcel of shares after accepting the takeover.
  • International All Sports Limited 01 & 02: the Panel addressed the issue of standstill agreements and their commercial impact on the market for control of a company.
  • Gloucester Coal Limited 01 & 01R: the Panel considered reverse takeovers in the context of the policy of the takeovers provisions of the Corporations Act.
  • A number of applications regarding rights issues: Bisalloy Steel Group Limited, DataDot Technology Limited, Emerald Capital Limited and Rey Resources Limited.

Guidance

The Panel publishes Guidance Notes to assist the market in relation to takeovers matters and to assist Panel members make consistent decisions. In the current period the Panel continued to review its Guidance Notes.

Rules

The Panel is also reviewing its 'Rules for Proceedings'. These were last updated in 2005.

Updated Guidance Notes

In the current period, the Panel continued its practice of updating its guidance notes employing the principles of simplified drafting. The Panel updated three Guidance Notes:

  • GN 2 Reviewing Decisions — updated to reflect the Panel's decision that it will not publicise receipt of an application for review of an ASIC decision until an appropriate time;
  • GN 4 Remedies General — now incorporates the Panel's old Guidance Note 9 on Costs Orders; and
  • GN 5 Specific Remedies — Information Deficiencies — now incorporates the Panel's old Guidance Note 16 on correction of takeovers documents.

Consultation paper

The Panel also proposed to update the following guidance notes:

  • GN 7 Lock up Devices;
  • GN 12 Frustrating Action;
  • GN 14 Funding Arrangements; and
  • GN 17 Rights Issues.

A consultation paper was released on 13 May 2009. It invited comments on these four guidance notes both generally and on the following specific issues:

  • Update of market practices — the Panel invited comments on whether the guidance notes accommodate current market practice, given that it has been some years since the last issue.
  • Funding arrangements — the Panel invited comments on whether a requirement of payment of bid consideration in an off market bid no later than transfer of shares was desirable, and whether it was necessary for bid conditions to precisely match funding conditions.

The period for comments closed on 30 June 2009. Five submissions have been received. The Panel is reviewing the submissions.

Guidance Note sub-committees

Guidance Notes are generally developed by sub-committees of Panel and non-Panel members.

Appendix 2 lists sub-committee members. The Panel thanks them for their contributions.


5 Section 659AA. References are to the Corporations Act 2001 (Cth) unless otherwise indicated.

6 Section 659B.

7 Section 657EA.

8 Section 655A.

9 Section 657EB.

10 Section 172 of the ASIC Act.

11 Attorney General of the Commonwealth of Australia v Alinta Limited and Others [2008] HCA 2.

12 See Cemex Australia Pty Ltd v Takeovers Panel and Another [2008] FCA 1572.

13 See Cemex Australia Pty Ltd v Takeovers Panel [2009] FCAFC 78.

14 Section 659B prohibits parties from bringing proceedings in the Federal Court before the end of the bid period. The parties consented to the matter being remitted to the Federal Court.

15Section 201A of the ASIC Act.