Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
CEMEX Australia Pty Ltd v Takeovers Panel [2008] FCA 1572
JUDICIAL REVIEW – Takeovers Panel – review of Panel's declaration that applicant's announcement of a final dividend payment departed from its best and final offer – whether "unacceptable circumstances" – whether contravention of the Corporations Act 2001 (Cth) is a mandatory consideration in deciding to make a declaration of unacceptable circumstances JUDICIAL REVIEW – Takeovers Panel – review of Panel's orders following declaration of unacceptable circumstances – whether orders were authorised by s 657D of the Corporations Act 2001 (Cth) – whether improper exercise of power – whether error of law CORPORATIONS – Takeovers Panel – orders under s 657D of the Corporations Act 2001 (Cth) – whether Panel had power to make order for payment to affected shareholders in the absence of evidence as to individual loss by shareholders – whether orders involved an impermissible delegation of power to the Australian Securities & Investments Commission – whether orders protected rights or interests that no longer exist Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 16 Australian Securities and Investments Commission Act 2001 (Cth) ss 172, 195, 261 Corporations Act 2001 (Cth) ss 602, 657A, 657C, 657D, 657E, 657EA, 659AA, 1478 Corporations Amendment (Takeovers) Act 2007 (Cth) Financial Services Reform Act 2001 (Cth) Judiciary Act 1903 (Cth) s 39B Australian Securities and Investments Commission Regulations 2001 (Cth) Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 cited Attorney General (Cth) v Alinta Ltd (2008) 242 ALR 1 referred to Australian Securities & Investments Commission v Yandal Gold Pty Ltd (1999) 32 ASCR 317 discussed Glencore International AG v Takeovers Panel (2005) 54 ACSR 708 discussed Glencore International AG v Takeovers Panel (2006) 151 FCR 77 discussed Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 cited Queen v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 cited CEMEX AUSTRALIA PTY LTD v SIMON MCKEON, ELIZABETH ALEXANDER AND JOHN O'SULLIVAN IN THEIR CAPACITY AS MEMBERS OF THE TAKEOVERS PANEL and AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION
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