TP02/007
The Panel today released for public comment a draft Guidance Note on its powers to make Costs orders in matters before the Panel.
The Panel said that it will not generally make costs orders because its proceedings are intended to be quick informal and commercial. Therefore, the costs to parties appearing before it are likely to be low.
The Panel noted that it can only make costs orders, like other orders, under section 657D of the Corporations Act if it has made a declaration of unacceptable circumstances in the matter before the Panel. However, it also said that costs will not automatically follow the event i.e. a party who is successful in an application before the Panel should not assume that it will automatically have its costs paid by the unsuccessful party.
The Panel has the power to direct any person to pay the costs of the parties to Panel proceedings (but not the costs the Panel itself incurs in proceedings). Those costs can include the costs of lawyers, bankers and other commercial advisers. Generally the Panel said that it will only award those costs that are actually, necessarily, properly and reasonably incurred in the course of the proceedings before the Panel.
The Panel's policy is that a party is generally entitled to make or resist an application once, presenting a case of reasonable merit, in a businesslike way, without exposure to a costs order.
The Panel said that it may make a costs order against a party if the party presents a case that is not arguable, engages in delay or obstruction, abuses the process, makes unsubstantiated assertions, or seeks an unmeritorious review.
The Costs Guidance Note is on the Panel's website.
The Panel seeks comments from interested persons on the Guidance Note by Friday 1 March 2002.
Comments can be provided to David Noakes, one of the Panel's Legal Secondees, by mail, or by fax on 03 9655 3511 or by email to david.noakes@takeovers.gov.au.
Nigel Morris
Director, Takeovers Panel
Level 47 Nauru House, 80 Collins Street, Melbourne VIC 3000
Ph: +61 3 9655 3501
nigel.morris@takeovers.gov.au