Information for proceedings

Important procedural information for proceedings

This page contains important information for the administration of Panel proceedings. If you are a party to proceedings or an interested person in relation to a matter, please ensure you read and take note of the following.

Panel process

  1. The Panel’s Procedural Rules and Guidelines contain detailed information on the Panel process (including how to become a party and communication protocols).

Receipt of application

  1. Tell us if you have not received a copy of the application.
  2. Tell us of anyone else who may be affected who may not have a copy of the application.

Communications

  1. The Panel uses email as its primary mode of communication during proceedings and expects parties to do likewise. Please let us know if this is a problem.
  2. Unless otherwise requested, correspondence and documents are to be sent to the Executive’s email address – takeovers@takeovers.gov.au.
  3. All documents in proceedings must be sent to each party at the same time (so far as practicable) as they are sent to the Panel. This should be clear on the face of the email (i.e., no “blind copies”).
  4. A single email should not be larger than 15MB in total. Separate emails are acceptable if needed.
  5. When sending emails to the Panel or to parties, ensure the subject of the email contains the matter name.

Data room

  1. The Panel may establish a data room to collate the information provided to it in the proceedings, together with Panel communications.
  2. If a data room is established, you will receive an invitation to the data room via email. Your access to and use of the data room will be subject to our Data Room Protocol which we will send separately, together with instructions for uploading submissions through the data room (if requested).

Document format

  1. Submissions and any accompanying material provided to the Panel and parties should be in Microsoft Office word (.doc or .docx), excel or PDF formats. Wherever possible, a document provided as a PDF file must be text-searchable. Any accompanying material should be clearly identified and numbered.

Becoming a party

  1. Complete a Notice to Become a Party, if you have not already provided one, to seek to become a party in the matter. The Notice to Become a Party includes an undertaking under section 201A of the ASIC Act to the effect that the proposed party will comply with the confidentiality obligations and media canvassing restrictions in Rules 18 and 19 of the Panel’s Procedural Rules 20201 – see further information below. Include contact details for up to 4 people on whom Panel documents can be served.
  2. A new Notice to Become a Party is required in review proceedings (unless otherwise advised).
  3. If you do not become a party you will not be kept apprised of the matter’s progress.
  4. The reasons for decision will identify the names of legal or financial adviser firms acting for parties in connection with the proceedings.

Checking conflicts

  1. Supply the following information as soon as possible (if not already supplied or if incorrect in the application), to help us check for conflicts of interest:
    1. the names of your directors, advisers (including legal, financial and accounting/audit), relevant/major shareholders, related bodies corporate (including your ultimate parent company or controller) and
    2. your interests in relevant companies in which you have a substantial holding (as defined in the Corporations Act).
  2. When notified of the sitting Panel, advise us as soon as possible if you think any of the sitting Panel members may have interests such that they may not be able to perform their duties properly.2 If you fail to do this promptly you may be taken to have waived any right to object on the basis of such interests.

Preliminary submissions

  1. A party other than the applicant may make a preliminary submission.3 If the Panel conducts proceedings, it will issue a brief inviting submissions.4 Should something occur that warrants comment outside that process, a party can ask to make a further submission.

Undertakings

  1. The Panel encourages parties to resolve matters wherever possible and welcomes any offer by a party to remedy potential unacceptable circumstances. While parties are free to offer an undertaking to resolve the matter at any point in the Panel’s process, the Panel is more receptive to resolutions proposed by the parties if they are offered earlier in the process.5

Privacy

  1. Personal information is collected in relation to Panel proceedings. We will share it only as required or authorised by law or with permission. The Panel may refer to personal information in a decision media release, declaration of unacceptable circumstances, orders or reasons.6 You may request access to your personal information, and may seek to correct it if it is not accurate or complete. For full details see the Panel’s Privacy Policy.

Obligation to inform the Panel

  1. Parties are also reminded that a person must not give information to the Panel that is false or misleading in a material particular.7 This obligation is reinforced in the Panel’s Procedural Rules 2020, which require documents to be accompanied by any relevant material (unless already provided)8 and states:

    A person who does not have personal knowledge of a matter included in a submission must make appropriate inquiries that the matter is true and not misleading.9

Confidentiality and media canvassing

  1. Panel proceedings are generally conducted in private. As part of this, the Panel has established rules to protect confidential information and to prevent issues before the Panel being publicly debated during the course of proceedings.
  2. Specifically, the Panel’s Procedural Rules 2020 provide as follows:
    1. Rule 18(1) requires that a person (whether or not a party) must not use or disclose any confidential information provided to it in the proceedings (including information disclosed in an application, a preliminary submission or a submission to the Panel), except in the proceedings itself (as permitted under the Procedural Rules 2020) or as required by law or the rules of a securities exchange.
    2. Rule 19(1) requires that a party must not 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 proceedings:
      1. until the proceedings are determined or the time limit within which an application may be made for review of a Panel decision10 has expired, whichever is longer and
      2. if a request is made, or proposed to be made, to vary, revoke or suspend any final orders, from the time the person becomes aware of the request or proposed request until it is determined by the Panel.
  3. The media canvassing restrictions in rule 19(1) do not prevent statements that give some information about the process – identifying the parties, the subject matter of the proceedings, the broad nature of the unacceptable circumstances alleged or the orders sought, or describing any decision of the proceedings – to the extent such matters have been disclosed publicly by the Panel (see rule 19(2)). This information (other than a decision of the proceedings) is generally in the media release the Panel made when it received the application.
  4. There can be no discussing the merits of the matter in any media. We would caution anyone relying on the exception in rule 19(2) to be very careful not to exceed it. Any person who may have contact with the media (e.g., the CEO or the corporate relations team) should be told very clearly not to canvass the issues with the media, even as backgrounding.11
  5. The Panel takes these rules seriously and expects parties to do likewise. Parties are expected to ensure that its “Representatives” (including directors, officers, employees, agents, contractors, service providers and advisers) comply with the confidentiality and media canvassing restrictions.12
  6. As noted above, parties undertake to comply with the confidentiality and media canvassing restrictions in rules 18 and 19 respectively as part of submitting a Notice to Become a Party.
  7. Compliance with the media canvassing obligation13 and the confidentiality obligation assists with speedy and smooth resolution of the matter,14 honours the promise made to both the Panel and the other parties, and is fair to the other parties who comply with the undertaking they have given.
  8. For any enquiries, please contact the Executive on 03 9655 3500 or via an email to takeovers@takeovers.gov.au.

1 Rule 16(1) of the Panel’s Procedural Rules 2020

2 Rule 27 of the Panel’s Procedural Rules 2020

3 Rules 20(1) and 20(2) of the Panel’s Procedural Rules 2020

4 See ASIC Regulation 20 and guideline 5.1 of the Panel’s Procedural Guidelines for further information

5 See Guidance Note 4 – Remedies General at [9] and [39] and rule 11(3) of the Panel’s Procedural Rules 2020

6 After receiving submissions from parties and other persons who may be affected by the relevant Panel decision

7  Section 199 of the ASIC Act.  It is a defence to a prosecution if the defendant believed on reasonable grounds that the information was true and not misleading

8 Rule 9(1)(f) of the Panel’s Procedural Rules 2020

9 Rule 22(2) of the Panel’s Procedural Rules 2020

10 Under section 657EA of the Corporations Act 2001

11 Rule 19(4) of the Panel’s Procedural Rules 2020 requires that a party must ensure that each of its “Representatives” complies with media canvassing restrictions.  See definition of “Representatives” in rule 5

12 See rules 5 (definition of “Representatives”), 18(3) and 19(4) in the Panel’s Procedural Rules 2020

13  compliance includes with the spirit of the undertaking, as made clear in Just Group Limited [2008] ATP 22 at [32]: “In some cases other issues are so connected with issues that are before the Panel that it is incumbent on parties not to take too technical an interpretation of the prohibition.”

14 Rule 6 of the Procedural Rules 2020