Glencore International AG (ACN 114 271 055) v Takeovers Panel [2006] FCA 274

FEDERAL COURT OF AUSTRALIA

Glencore International AG (ACN 114 271 055) v Takeovers Panel [2006] FCA 274 JUDICIAL REVIEW – review of Panel's declarations that non-disclosure of acquisition of shares in circumstances of a declared takeover bid for a company were unacceptable circumstances CORPORATIONS – meaning of phrase 'substantial interest'- exercise of powers of Takeovers Panel – applicant did not disclose share acquisitions in the company over a period of time and was not required to do so by the Act – applicant also party to an agreement with banks as to cash settled equity swaps which the banks hedged by acquiring shares in the same company – whether applicant's relationship with the banks was to be characterised as an association – whether hedge shares to be included in considering whether applicant had a 'substantial interest' – whether applicant's non-disclosure effected the rate, extent and level of consideration of the takeover bid

Corporations Act 2001 (Cth) 9, 12, 602, 606, 608, 657A, 657C, 657D, 657EA, 657F, 661, 662A, 670A, 671B Administrative Decisions (Judicial Review) Act 1977 (Cth) Judiciary Act 1903 (Cth) s39B Australian Securities and Investments Commission Act 1989 (Cth) s 171 Financial Services Reform Act 2001 (Cth), sch 3 Companies (Acquisition of Shares) Act 1980 (Cth) Companies (Acquisition of Shares) (New South Wales) Code Glencore International AG v Takeovers Panel [2005] FCA 1290- referred to R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13- referred to Brierly Investments Ltd v Australian Securities Commission (1997) 78 FCR 255- referred to GLENCORE INTERNATIONAL AG (ACN 114 271 055) & ANOR v TAKEOVERS PANEL (Constituted by its members KATHLEEN FARRELL, PETER SCOTT and DENIS BYRNE) & ORS NSD2265 OF 2005 EMMETT J 22 MARCH 2006 SYDNEY