Process Information

Introduction

  1. When the Takeovers Panel receives an application it sends out a process letter to parties. The letter refers parties to our website for more information. This document contains information for parties about the Panel's process.
  2. This document covers:
    1. Becoming a party to proceedings before the Panel.
    2. The Panel process in considering issues in proceedings.
    3. Protocols for communicating with the Panel and other parties.

Preliminary

  1. Procedural requirements applicable to Panel proceedings (with which parties should become familiar) are found in:
    1. Part 6.10 of the Corporations Act 2001 (Cth) (Act) and regulation 6.10.01 of the Corporations Regulations 2001 (Cth)
    2. Part 10 of the Australian Securities and Investments Commission Act 2001 (ASIC Act)
    3. Part 3 of the Australian Securities and Investments Commission Regulations 2001 (Cth) (ASIC Regulations) and
    4. Takeovers Panel Procedural Rules
  2. The Panel takes very seriously the legislative requirement to ensure that it conducts its proceedings:
    1. as fairly and reasonably
    2. with as little formality and
    3. having regard to the time available before the decision must be made, in as timely a manner,

    as the requirements of the ASIC Regulations, the corporations legislation, and a proper consideration of the matters before the Panel permit.

Becoming a Party

  1. The Panel will only accept submissions from a party (or submissions that are expressly accepted under ASIC Regulation 24).
  2. To become a party, you must ask the Panel and lodge a Notice of Appearance (see Annexure A to Procedural Rules). You should do this as soon as possible. Delay in becoming a party may delay proceedings and cause additional costs for other parties. The Panel may take this into account in determining if a costs order is appropriate.

Confidentiality Undertaking and Media Undertaking

  1. By giving a Notice of Appearance, a party also gives:
    1. a confidentiality undertaking not to use or disclose any confidential information provided to it in the proceeding otherwise than as permitted under the Procedural Rules or disclosed as required by law or the rules of a securities exchange. This undertaking is not limited by time and
    2. a media undertaking not to directly or indirectly cause, participate in or assist in the canvassing in any media of any issue that is before (or likely to be before) the Panel in the proceeding. This undertaking applies until the Panel publishes its reasons for decision, and if any application is made in a proceeding to vary any final order, from the time the proposed party becomes aware of the application until it is determined by the Panel. However, this 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.

Non-public information

  1. Parties should note that they may receive non-public, material information during the Panel proceedings that may create disclosure obligations or give rise to insider trading restrictions.
  2. This issue is for the party concerned to manage, bearing in mind the undertakings it has given the Panel.

Freedom of Information

  1. The Panel is subject to the Freedom of Information Act 1982 (Cth). Accordingly, it is possible that documents, including submissions, relating to Panel proceedings may be the subject of requests for access in accordance with that Act.

Panel Process

Preliminary submissions relevant to decision to conduct proceedings

  1. Once appointed, a sitting Panel will meet to consider whether to conduct proceedings. If you are not the applicant, you may make a preliminary submission concerning whether the Panel should conduct proceedings: see Rule 6.2.
  2. The Panel will not normally give the applicant or other parties an opportunity to respond to such a submission before deciding whether to conduct proceedings.

The Brief

  1. If the Panel decides to conduct proceedings, it will issue a brief to each party setting out as far as necessary:
    1. a description of the circumstances to be examined
    2. the issues to be addressed in submissions
    3. the timetable for submissions and rebuttals and
    4. the form that submissions must take.
  2. The Panel may issue one or more separate briefs:
    1. to refine issues or determine relevant facts either before or after the primary brief has been given to parties and
    2. in respect of interim orders (if sought) or final, orders.

Submissions

  1. The Panel will give an opportunity to make submissions on the relevant facts, law, policy and discretionary considerations to:
    1. ASIC
    2. parties and persons to whom a proposed declaration relates and
    3. persons to whom a proposed final order relates.
  2. There may be limitations on the time that the Panel can allow for submissions to be made, particularly where the time available for the Panel to take action is short (for example, in cases where urgent orders are sought). In some cases it may be necessary to make urgent interim orders without receiving submissions from affected persons, in which case, such persons may subsequently be given an opportunity to make submissions as to whether such orders should be maintained.
  3. Time limits imposed by the Panel must be complied with.
  4. The Panel will generally treat a company as capable of representing the interests of its shareholders.

Form of submissions

  1. Submissions must be succinct and on point, and not unduly legalistic. They should avoid use of emotive language.
  2. Parties should provide the Panel with relevant documents (or extracts), together with any other relevant background information that has not already been provided by another party. The Panel executive is happy to discuss with a party whether it should provide documents or information.
  3. It is not necessary for parties to provide copies of documents which have already been provided to the Panel unless specifically requested by the Panel. Where documents have already been provided to the Panel, parties referring to those documents should note the date and author of the document and indicate how and when it was previously provided.

False or misleading information

  1. Parties should note that under section 199 of the ASIC Act it is an offence to give false or misleading information in submissions to the Panel.

Withholding information

  1. If you wish to withhold information from a party (eg by making a confidential submission or providing some other material to the Panel on a confidential basis) please see Rule 2.3.
  2. A request to withhold information will only be accepted in exceptional cases. However, if accepted, the Panel may specify measures to mitigate the effects of providing the information.

Conferences

  1. The Panel may decide to hold a conference if it considers that the issues, or specific issues, can be resolved more efficiently that way. Usually it will make that decision after reviewing submissions in response to the brief.
  2. If the Panel decides to hold a conference, it will inform the parties and provide additional information, including the information required by the ASIC regulations.

Protocols for communicating

Electronic documents

  1. The Panel uses email as its primary mode of communication during proceedings.
  2. The Panel expects all communications between parties in a proceeding to be by email.
  3. The parties are responsible to ensure that documents sent by email are reasonably capable of receipt by all parties and the Panel.
  4. Submissions and rebuttal submissions should be provided in a format which Microsoft Word can open. If parties provide submissions and rebuttal submissions in PDF format, a copy in a format which Microsoft Word can open must also be provided to the Panel. Any attachments must be clearly identified and numbered.
  5. Emails must be no larger than 3MB for any one attachment and 8MB in total. Separate emails are acceptable if needed.
  6. Please advise the Panel executive in advance if you have difficulty receiving large attachments by email or need to send a large attachment.

Serving submissions

  1. All documents lodged with the Panel in proceedings must be served on each party at the same time (so far as practicable).
  2. It should be clear on the face of an email that it has been sent to the Panel and all parties at the same time (i.e. recipients should not be "blind copied").

Cover sheet for submissions

  1. Submissions and rebuttals should attach a cover page in a form as in the Schedule.

SCHEDULE

TAKEOVERS PANEL

[Date]
Proceeding No: [ ]

[Name of Matter]

(Rebuttal*) Submissions on [Panel Brief*]

By [Name of Party]

Panel Brief

[Date]

Lodged by:

  • [Name]
  • [Address]
  • [Address]
  • Contact: [Name(s)]
  • Tel: [Number(s)]
  • Fax: [Number(s)]
  • E-mail: [Address(es)]

*As appropriate