The Panel Process The Takeovers Panel

The Panel and Process

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Panel proceedings

The following sets out in summary how the Panel's proceedings generally operate. The Executive is available to answer any queries and is happy to assist either by phone or email.

The Panel will consider a matter on application only. The Panel does not consider matters of its own volition. However, the Panel may refer a matter to ASIC for ASIC to consider whether to make an application.1

When an application is made, the substantive President of the Panel appoints three members to be the "sitting Panel" and the sitting Panel must consider whether it will commence proceedings in relation to the matter. If the substantive President appoints herself to a sitting Panel then she will be the sitting President. Otherwise another member of the sitting Panel is appointed as its sitting president. The substantive President, and the selected Panel members, must ensure that they do not have any material conflicts.

The Panel is expressly required (under Regulation 13 of the ASIC Regulations) to ensure that its proceedings are:

  1. as fair and reasonable and
  2. conducted with as little formality and
  3. conducted in as timely a manner,

as the requirements of the Panel's legislation, and a proper consideration of the matters before the Panel, permit.

The Panel has published Procedural Rules (made under s195 of the ASIC Act) which govern Panel proceedings.

Proceedings are primarily determined on written submissions. 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.

Under Regulation 16, the rules of evidence do not apply to Panel proceedings. However, under s195(4) of the ASIC Act, the rules of procedural fairness do apply, to the extent that they are not inconsistent with the Panel's legislation.

Section 199 of the ASIC Act prohibits a person from giving information or evidence that is false or misleading in a material way in written submissions to the Panel or while appearing before the Panel in proceedings.

Steps in the Panel process

The sitting Panel's first tasks are to decide whether to commence proceedings and whether to make any interim orders (to preserve the status quo). The President may also make interim orders, which usually occurs when interim orders are so urgent that they cannot wait until the appointment of a sitting Panel.

A party (other than the applicant) may make preliminary submissions about whether the Panel should conduct proceedings in relation to an application. Parties must not make rebuttal submissions to a preliminary submission. Preliminary submissions should be brief (generally no more than 2 pages). See Procedural Rule 6.1 for further information.

In deciding issues raised in an application (other than an application for review of an ASIC decision), a sitting Panel has to decide whether unacceptable circumstances have occurred. This requires a sitting Panel to consider legal and policy issues as required in s657A. In particular, the sitting Panel has to consider whether the circumstances are unacceptable in light of the principles referred to in s602 of the Corporations Act. This includes whether the holders of voting shares know the identity of the bidder, have a reasonable time to consider the bid, have sufficient information to make a decision, have a reasonable and equal opportunity to participate in any benefits arising from the bid and that the bid takes place in an efficient, competitive and informed market.

The sitting Panel also considers whether there has been or will be a contravention of Chapters 6, 6A, 6B or 6C. However even if it determines that there has been or will be a contravention, it does not have to make a declaration of unacceptable circumstances: it is required to consider the s602 principles and any other policy matters that it considers relevant and the public interest. On the other hand, if the Panel does not find a contravention of Chapters 6, 6A, 6B or 6C, it can still make a declaration of unacceptable circumstances, particularly in light of the s602 principles. For more information see the summary of takeover provision in Australia.

The parties have the right to seek (in certain circumstances this can only be done with the President's consent) a review of a Panel decision by another Panel (referred to as a Review Panel). The Panel treats reviews as a de novo consideration of the matter on the merits. This means that the Review Panel considers afresh the circumstances in the application being reviewed, any new circumstances raised (which may have arisen subsequent to the initial decision) and makes its own findings and decisions. In addition, de novo reviews of ASIC decisions for exemptions and modifications of Chapter 6 (and of Chapter 6C during a takeover) are made to the Panel.

How long the Panel process takes

Applications to the Panel move very quickly and therefore parties and their advisers need to be prepared.

The time a matter takes from application to conclusion will depend on a number of factors, including:

  • the complexity of the matter – more complex or document-intensive matters take longer
  • the urgency of the application – timing constraints involved in a transaction may be relevant to the application and
  • whether the sitting Panel decides to conduct proceedings – matters will usually take longer if the Panel decides to conduct proceedings.

Under ASIC Regulation 20(a), the Panel must decide whether to conduct proceedings as soon as practicable after receiving an application. A decision on whether to conduct proceedings is usually made between a few days and a week after an application is received.

If the sitting Panel decides not to conduct proceedings on a matter, the matter will usually conclude approximately 1 – 2 weeks after the application is made. Reasons for the decision not to conduct proceedings must be provided to the parties at the same time as the parties are notified of the decision.

If the Panel decides to conduct proceedings, the matter will usually conclude approximately 2 - 3 weeks after the application is made. Matters can take shorter or longer than this, depending on the circumstances and the urgency involved.

Briefs and submissions

If the Panel decides not to conduct proceedings, a brief will not be issued.

If the Panel decides to conduct proceedings, the Panel must as soon as practicable:

  • notify the decision to ASIC and each company to which or person to whom the application relates and
  • prepare a brief setting out a general description of the matters to be examined in the proceedings and the issues to be addressed in submissions for the proceedings.

Parties may then make submissions to the Panel addressing the issues identified in the brief. The Panel may also give notice to a person (or the public at large) of a decision to conduct proceedings and may invite a person who is not a party to the proceedings to give a written expression of interest in the proceedings. This must be given within a time allowed by the Panel.

Parties are usually given 2 Business Days from receipt of a brief to provide submissions and 1 further Business Day from receipt of submissions to provide rebuttal submissions. However, shorter or longer times may be allowed. The Panel may also invite further submissions from the parties.

While the time period for submissions and rebuttals is short, the Panel expects that parties will be truthful and accurate in their communications with the Panel. Section 199 of the ASIC Act prohibits a person from giving information or evidence that is false or misleading in a material way in written submissions to the Panel or while appearing before the Panel in proceedings.

Submissions must be lodged with the Panel within the time allowed by the Panel. If a submission is provided after the time specified by the Panel, the issue may be decided without it. Submissions and rebuttal submissions must be provided to ASIC and each party to the proceeding.

Reasons for a decision (other than a decision not to conduct proceedings) are normally provided to parties separately after the decision. The decision is usually communicated by email setting out some of the factors important to the Panel in coming to its conclusion.

Confidentiality

The Panel is required to keep information confidential under s127 of the ASIC Act, and it has provisions under s190 of the ASIC Act which allow it to restrict publication of information given to the Panel.

In addition, the Notice of Appearance contains undertakings under section 201A of the ASIC Act in relation to confidentiality and media canvassing, including that each party and its directors, officers and advisers will not:

  • use or disclose any confidential information provided to it in the proceeding (other than use of the information in the proceeding as permitted under the Panel's rules or as required to be disclosed by law or the rules of a securities exchange) 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.

The Panel considers that non-compliance with the undertakings may adversely affect its ability to resolve disputes as quickly and efficiently as possible.

If an undertaking is signed by a legal adviser on behalf of its client, the Panel may require the legal adviser to provide evidence demonstrating that the legal adviser has adequately advised the client about the obligations in the undertakings.

The Panel expects that parties will instruct each of their directors, officers and advisers to comply with the undertakings. The Panel also expects that parties will not attempt to avoid the undertakings by talking to the media about closely related issues to those in the proceedings2 or by briefing the media prior to lodging a Notice of Appearance.

If a party has a concern about commercially sensitive information, they should contact the executive to discuss possible ways in which the Panel can keep such information confidential.

Powers

Two primary pieces of legislation empower and regulate the operations of the Panel. They are Part 6.10 of the Corporations Act and Part 10 of the ASIC Act.

Part 6.10 of the Corporations Act sets out the primary powers of the Panel to review decisions and make declarations and orders. Part 10 of the ASIC Act contains most of the machinery provisions for the Panel, including its establishment and the processes of conducting its proceedings.

The ASIC Regulations give further specific powers to the Panel.

Protection of Panel Members

When exercising their statutory functions and powers in relation to Panel proceedings, Panel members have the same immunity and protection from suit in civil actions as a Justice of the High Court (see s197(1) of the ASIC Act).

Panel members also have protection from improper advances or other forms of conduct which could constitute a contempt if done in court proceedings. Forms of interference such as threats, intimidation or attacks on the professional competence or impartiality of a Panel member may constitute an offence under s200 of the ASIC Act. Under this section, a person is prohibited from obstructing or hindering the Panel or a member and from disrupting Panel proceedings. Contravention of this prohibition carries a penalty of $5,500 and/or 1 year of imprisonment.


1 ASIC Regulation 18

2 See Just Group Limited [2008] ATP 22 at [32]