Tinkerbell Enterprises Pty Limited as Trustee for The Leanne Catelan Trust v Takeovers Panel [2012] FCA 1272

FEDERAL COURT OF AUSTRALIA

Tinkerbell Enterprises Pty Limited as Trustee for The Leanne Catelan Trust v Takeovers Panel [2012] FCA 1272 Citation: Tinkerbell Enterprises Pty Limited as Trustee for The Leanne Catelan Trust v Takeovers Panel [2012] FCA 1272

Parties: TINKERBELL ENTERPRISES PTY LIMITED ATF THE LEANNE CATELAN TRUST v PETER DAY, JOHN KEEVES AND ANDREW SISSON IN THEIR CAPACITY AS MEMBERS OF THE TAKEOVERS PANEL, DAVID BENNETT AC QC, CATHERINE BRENNER AND KATHLEEN FARRELL IN THEIR CAPACITY AS MEMBERS OF THE TAKEOVERS PANEL and AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

File number: QUD 73 of 2011

Judge: COLLIER J

Date of judgment: 16 November 2012

Catchwords: CORPORATIONS – application for order of review of decisions of Takeovers Panel – applicant a trustee company – applicant acquired shares in a second company – significant parcel of shares in second company already owned or controlled by father of individual controlling applicant – gift from father to individual controlling applicant for purchase of shares in second company – declarations of unacceptable circumstances made by Takeovers Panel in respect of purchase of shares by applicant – declarations made that individual controlling applicant and her father were associates as defined in Corporations Act 2001 (Cth) s 12 – whether lack of independent advice and minimal involvement of lawyers indicative of lack of independence – whether errors in findings of fact, law and policy at first instance – Takeovers Panel declined to review initial decision on basis that no reasonable likelihood that review application would result in different outcome – whether inferences drawn by Takeovers Panel open to Panel – whether "reasonable" inferences required to be "reasonable and definite" – whether breach of rules of natural justice – whether oral hearing necessary – inferences drawn based on experience of members of Takeovers Panel ADMINISTRATIVE LAW – application for order of review of decisions on grounds of error of law under Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5 – whether inferences drawn by Takeovers Panel required to be "reasonable and definite" – whether inference open on facts – findings of fact not reviewable – whether breach of natural justice – adverse credit findings made in absence of oral hearing and on incomplete evidence – inferences drawn and conclusions made as to "uncommercial behaviour" or "usual" behaviour on basis of experience of members of Takeovers Panel – requirement that rules of natural justice be applied to extent not inconsistent with legislation (Australian Securities and Investments Commission Act 2001 (Cth) s 195) – no requirement for oral hearing – clarification of evidence sought from witnesses – agreement of parties that relevant issues suitable to be dealt with by written submissions