Australian Securities & Investments Commission v Fortescue Metals Group Ltd [No 5] [2009] FCA 1586

FEDERAL COURT OF AUSTRALIA

Australian Securities & Investments Commission v Fortescue Metals Group Ltd [No 5] [2009] FCA 1586

CORPORATIONS - continuous disclosure - obligation to disclose information to ASX under Chapter 6CA Corporations Act 2001 (Cth) - relationship between continuous disclosure provisions of ASX Listing Rules and Corporations Act - agreements contemplating execution of fuller and more detailed agreements - mining project contingent upon completion of definitive feasibility study - notification to ASX in purported compliance with continuous disclosure provisions under s 674 - asserted binding legal effect of agreements - whether information disclosed by listed disclosing entity as to legal effect of agreements was incorrect or unreasonably based - whether entity ought reasonably to have come into possession of different information as to legal effect of agreements - relevance of subjective belief or opinion as to legal effect - whether opinion as to legal effect honestly held - whether legal effect of agreements as asserted by plaintiff was information that was not generally available for the purposes of s 674(2) - whether entity received legal advice as to effect of agreements and disclosure obligations - ex ante and ex post consideration of materiality for purposes of s 674(2) - correct approach - whether contravention of s 674(2A) by director allegedly involved in entity's alleged contravention of s 674(2) CORPORATIONS - misleading or deceptive conduct under s 1041H – public disclosures made as to the binding legal effect of agreements - whether conduct in relation to a financial product or a financial service - relevance of belief or opinion - relevance of context at the time disclosures were made to market - whether disclosures were misleading or deceptive CORPORATIONS - director's duties - whether director breached duty to exercise reasonable care and diligence required by s 180(1) - whether disclosure about legal effect of agreements was honest and reasonable – legal advice obtained consistent with belief. EVIDENCE - allegations of dishonesty no reasonable evidentiary basis for such allegations EVIDENCE - standard of proof - Briginshaw standard - prescription of civil standard of proof in a civil penalty proceeding by s 1332 of the Corporations Act - prescription of balance of probabilities as standard of proof in a civil proceeding by s 140 Evidence Act 1995 EVIDENCE - applicability of rule in Jones v Dunkel to civil penalty proceedings - rule in Browne v Dunn - consequences of failure to comply with rule in Browne v Dunn EVIDENCE - admissibility of transcripts of examinations under s 19 Australian Securities and Investments Commission Act 2001 - whether transcripts contain admissions EVIDENCE - relevance of expert opinion of statisticians, stockbrokers and analysts in determining contraventions of continuous disclosure provisions