Frequently Asked Questions
- Does an application need to be in a particular form?
- How long can an application be?
- Does an applicant need to lodge a notice of appearance?
- Does ASIC have to be involved in a matter?
- How long does a matter take?
- I have been contacted by the media about the proceedings. What are my obligations?
- Who will be a party to the proceedings?
- I am a "potentially interested" party. Do I have to file a notice of appearance?
- Do I need to be legally represented?
- I have received the Declaration of Interests identifying the members of the sitting Panel for a matter. I am concerned a member may have a conflict. What can I do?
- Will I be notified when the sitting Panel is meeting to consider the matter? Can I participate?
- When will I know if the Panel has decided to conduct proceedings?
- Circumstances have changed since we made an application. Can we withdraw the application?
- I am an adviser to a party. Will my firm's role be made public?
- Do parties have to make preliminary submissions?
- The Panel has asked parties to make submissions and rebuttals. Do they need to be made in a particular form?
- The Panel has asked for confidential or privileged information from my client or me. Do I have to provide the information to all parties?
- What orders can the Panel make?
- Will I be consulted if the Panel proposes to make orders against my client or me?
- I am not happy with the Panel's decision. Can I seek a review?
- How long do I have to lodge an application for review of the Panel's decision?
1. Does an application need to be in a particular form?
2. How long can an application be?
An application must not exceed 10 A4 pages in 12 point for the details of the application (excluding procedural information). You may be asked to re-write an application that exceeds this length. A request to exceed the page limit may be made. It should explain why the additional pages are necessary. See Procedural Rule 3.1.
3. Does an applicant need to lodge a notice of appearance?
Yes. A notice of appearance proforma is available under Notice of Appearance.
4. Does ASIC have to be involved in a matter?
Yes. A copy of the application must be given to ASIC as well as any person identified in the application as a potentially interested person. Documents must be sent to ASIC by email to AsicTakeoverMatters@asic.gov.au, unless action officers have been identified.
5. How long does a matter take?
The time a matter takes from application to conclusion will depend on a number of factors. Further information on the timing of matters can be found under How long the Panel process takes.
6. I have been contacted by the media about the proceedings. What are my obligations?
The Notice of Appearance contains undertakings under section 201A of the Australian Securities and Investments Commissions Act 2001 (Cth) in relation to confidentiality and media canvassing. In particular, a proposed party to a matter must undertake that it and its directors, officers and advisers will not: use or disclose any confidential information provided to it in the proceeding, other than in limited circumstances or directly or indirectly cause, participate in or assist the canvassing in any media of any issue that is before (or likely to be before) the Panel in the proceeding. However, the undertaking does not apply to statements that, without discussing merits, identify the parties or the subject matter of the proceeding or the broad nature of the unacceptable circumstances alleged or the orders sought. You should consider these obligations before discussing a matter or potential matter with the media. A notice of appearance proforma is available under Notice of Appearance.
7. Who will be a party to the proceedings?
A copy of the application must be given to ASIC as well as any person identified in the application as a potentially interested person. A person who would like to become a party must provide the Panel with a Notice of Appearance. A person does not become a party until the Panel accepts the Notice of Appearance. To become a party you must have an interest in the application beyond that of a member of the public. A notice of appearance proforma is available under Notice of Appearance
8. I am a "potentially interested" party. Do I have to file a notice of appearance?
No. However, if you do not file a Notice of Appearance, you will not be a party to the proceeding, the Panel may decide not to take a document or submission you provide into account and you may not receive material in relation to the application.
9. Do I need to be legally represented?
No. There is no requirement that a party be legally represented. A party may make submissions directly to the Panel or through other representatives. Under s194 of the ASIC Act, the Panel must consent to a party being legally represented. The form of request is set out in the Notice of Appearance. If a party is to be legally represented, the Panel prefers it to be by the commercial lawyers who have been advising it on the transaction the subject of the application. A party that wishes to be legally represented by other lawyers must explain why when requesting consent. See Procedural Rule 4.3.
10. I have received the Declaration of Interests identifying the members of the sitting Panel for a matter. I am concerned a member may have a conflict. What can I do?
You should contact the Panel executive as soon as possible and describe: the interest that could conflict with the proper performance or exercise of that member's functions or powers in the proceeding and why it is not immaterial or indirect. For further information see the Panel's Procedural Rules.
11. Will I be notified when the sitting Panel is meeting to consider the matter? Can I participate?
Where possible, the executive will try to notify parties of a proposed meeting time for the sitting Panel. However, this will not be possible in all circumstances. A sitting Panel will usually meet by conference call. Ordinarily, parties are not invited to participate in these calls. However, the sitting Panel may convene a conference. The Panel has significant powers at a conference, including the powers to take evidence on oath, subpoena witnesses, examine witnesses or subpoena documents.
12. When will I know if the Panel has decided to conduct proceedings?
If the Panel decides to conduct proceedings, the parties will usually be informed when a brief is circulated to all parties. In certain circumstances, the Panel may inform parties of its decision to conduct proceedings in advance of providing the brief. Usually, a decision to conduct proceedings is not made public until the final decision in relation to the matter is made public. However, if the Panel decides not to conduct proceedings, the reasons for that decision must be provided to the parties at the same time as the decision under ASIC Regulation 21(2). Accordingly, parties cannot be notified of the decision until the draft reasons have been prepared by the sitting Panel.
13. Circumstances have changed since we made an application. Can we withdraw the application?
An applicant may only withdraw its application with the consent of the Panel or, if the request for consent to withdraw is made before the appointment of a Panel, the President. If the changes resolve the unacceptable circumstances then the Panel or the President (as relevant) is likely to consent. See Rule 3.4 of the Panel's Procedural Rules.
14. I am an adviser to a party. Will my firm's role be made public?
Yes. The Panel intends to identify in its reasons for decision the names of legal or financial adviser firms acting for parties in connection with the proceedings.
15. Do parties have to make preliminary submissions?
No, but it is open to parties (other than the applicant) to do so. They must be brief (usually no more than 2 pages) and address whether the Panel should conduct proceedings. Further information about the submission process can be found on the Panel Process page.
16. The Panel has asked parties to make submissions and rebuttals. Do they need to be made in a particular form?
17. The Panel has asked for confidential or privileged information from my client or me. Do I have to provide the information to all parties?
You can request that the Panel make a direction that information be withheld from a party (for confidentiality or other reasons). See Procedural Rule 2.3. A request for a direction must be made before the information is provided to the Panel and must comply with the requirements of Procedural Rule 2.3. The request should be provided to all other parties (but, in most cases, does not need to include any of the information that the party proposes to withhold). A similar process applies for advice given in a document over which a party wishes to claim client legal privilege.
18. What orders can the Panel make?
The Panel has wide powers to make orders where it has made a declaration of unacceptable circumstances. The Panel may make any order (including a remedial order but not including an order directing a person to comply with a requirement of Ch 6, 6A, 6B or 6C) that it thinks appropriate in the circumstances set out in s657D(2) of the Corporations Act. The Panel or the President of the Panel may also make interim orders of the same type in relation to circumstances, even if there is no declaration of unacceptable circumstances under s657A or no application to the Panel for a declaration of that kind has been made. For applications where the Panel is asked to review a decision of ASIC, the Panel may exercise all the powers and discretions conferred on ASIC by Ch 6 and Ch 6C. The Panel must make a decision affirming the decision, varying the decision or setting aside the decision (and either making a decision in substitution or remitting the matter for reconsideration by ASIC). See s656A of the Corporations Act.
19. Will I be consulted if the Panel proposes to make orders against my client or me?
Yes. Before making an order under s657D, the Panel must given each person to whom the proposed order would be directed, each party to the proceedings and ASIC an opportunity to make submissions to the Panel about the matter. See Section 657D(1) of the Corporations Act. However, the Panel or the President of the Panel may make interim orders without consulting parties. Similar processes apply in relation to applications for review of a decision of ASIC under s655A or s673. See s656B of the Corporations Act.
20. I am not happy with the Panel's decision. Can I seek a review?
Yes – in some circumstances. ASIC or a party to the proceedings in which the decision was made regarding unacceptable circumstances may apply under s657EA of the Corporations Act for review of the decision. However, consent of the President of the Panel is required to apply for a review in certain circumstances (eg, where the Panel has decided not to conduct proceedings). See s657EA(2) of the Corporations Act. If the decision was a review of an ASIC decision, there is no further review.
21. How long do I have to lodge an application for review of the Panel's decision?
An application for review of a Panel decision must be given to the Panel no later than 2 Business Days after the date on which that decision was made (see Corporations Regulation 6.10.01).