In that case the relevant instrument was a document embodying conditions of employment. Section 28(2) of the Health Insurance Commission Act 1973 made the provisions of that document the terms and conditions governing employment of persons who agreed to be employed by the Commission. But the section gave to the document a greater significance than that. It enabled the terms and conditions of a person's employment to be altered by the Commission even after the employment relationship had commenced and thus affected the rights and obligations of the Commission's staff. So seen the document was an instrument made under the Act and thus within the definition of "enactment" for the purposes of the ADJR Act.
However, the Listing Requirements of the Exchange are not made under any of the Acts to which reference has been made. Those Requirements as in force, at least in 1980, were a merely private act of the predecessor to the Exchange, operative as a matter of contract and enforceable against companies whose securities were listed on the Exchange. It is true that the Listing Requirements were identified in the Securities Industry Act which saw the incorporation of the Exchange and the novation of contractual obligations to it. It is true also that a court may enforce not only compliance with the Listing Requirements but may also order enforcement by the Exchange of that compliance. But the fact that the Listing Requirements are referred to in legislation does not mean that they are made under it. More than identification in
a statute is required before an instrument can be said to be one made under a Statute.
In consequence the Rules themselves do not fall within the definition of enactment, with the result that the decision to delist is not a decision under an enactment.
In our opinion, his Honour was therefore correct in upholding the objection to competency and the appeal to this extent must fail.
WHETHER THE DECISION TO DELIST CHAPMANS WAS VOID - LISTING REQUIREMENT 3J(15)
For the purpose of this question it can be assumed that the letter of 26 November 1993 constituted an effective decision to remove the name Chapmans from the Official List. That is a matter to which we will later return.
Senior counsel for Chapmans submits that, as a matter of construction of the Listing Requirements and the contractual arrangements between Chapmans and the Exchange, the Exchange was bound, should it determine to remove the name of a company from the Official List in circumstances where the listing of the shares of that company had been suspended and inquiries had been made to comply with the provisions of Rule 3J(15). That Rule requires that there be given to the company three months notice and the opportunity in that three month period to satisfy the Exchange that its requisitions have been met. For the Exchange, senior counsel submits that the Exchange has an absolute discretion at any time to remove the name of a company from the List without complying with Listing Rule 3J(15). Reference is made in support of this proposition to statements included in the initial application for listing, in the agreement for listing, in the application for listing additional securities and in Article 74 of the Articles of Association of the Exchange which have already been set out.
The argument put on behalf of the Exchange renders Rule 3J(15) nugatory. Indeed senior counsel for the Exchange was forced to concede that 3J(15) in no way affected the generality of the language in the other provisions which left the matter of delisting wholly to the discretion of the Exchange. The procedure in Rule 3J(15) was thus to be seen to be merely one path which the Exchange could take, but not a path which it was bound to take in circumstances which came within it. So, it was said, the Exchange could, if it so desired at its pleasure, remove the name of a company from the Official List without giving the company a right to satisfy requirements or indeed without the giving of any notice.
It is an elementary proposition that a contract will be read as a whole giving weight to all clauses of it, where possible, in an endeavour to give effect to the intention of the parties as reflected in the language which they have used. A court will strain against interpreting a contract so that a particular clause in it is nugatory or ineffective, particularly if a meaning can be given to it consonant with other provisions in a contract. Likewise where there are general provisions in a contract and specific provisions, both will be given effect, the specific provisions being applicable to the circumstances which fall within them.
Clause 3J(15) of the Listing Requirements deals with a specific case. It comes into operation only where two prerequisites have been satisfied. First, it will apply only where the company's securities have been suspended. No doubt, unless some other Rule were applicable, the Exchange could remove a company from the List in circumstances where its shares had not been suspended without complying with Rule 3J(15). The second prerequisite is that the Exchange must have made requisitions upon the company which requisitions have not been answered satisfactorily.
The word "requisitions" in the context of Rule 3J(15) means no more than the act of requiring or demanding. Generally, the requirement or demand will be to furnish information, although this need not always be the case. A requisition could relevantly involve the demand that a particular document be furnished. Where, however, in the case of a company the securities of which have been suspended, the Exchange requires information from that company and that information is not answered in a manner which is satisfactory
to the Exchange, then the provisions of Rule 3J(15) come into operation. But Rule 3J(15) makes it clear to companies in this position that the name of the company will not be removed from the Official List for a period of three months during which time the company may supply the information or otherwise answer the requisitions in a way that will be satisfactory to the Exchange.
Other general provisions of the contractual arrangements between the company and the Exchange, that is to say in the application for listing, the listing agreement, the Articles of Association and in any application for listing of supplementary securities, which provisions give the Exchange an absolute discretion without the need for notice, may apply in other situations (subject to questions of procedural fairness) but will have no application to a case where the prerequisites of Rule 3J(15) have been satisfied.
It follows, therefore, that if the letter of 26 November 1993 is properly to be seen as a decision removing Chapmans from the Official List, that decision, not being in compliance with Rule 3J(15), would be void.
The wording of the 26 November 1993 letter is not completely clear. Probably the better interpretation is that the Exchange has made a decision to remove the name of Chapmans from the Official List but has stayed or suspended
that decision pending the determination of an appeal, assuming as was the case, an application to appeal was lodged by 1 December 1993. The alternative interpretation is that no decision had yet been made and no decision would be made unless and until the appeal process was determined. This alternative interpretation while giving effect to the word "unless" is inconsistent with the remaining language of the letter which refers to a decision having been made to delist.
The evidence before the learned trial judge does not permit the Court to form a view as to what the nature of the so-called appeal process is. Power to make a decision to delist is conferred upon the Board of the Exchange. The Board has delegated certain decisions, including the decision to delist to a Committee called the National Listing Committee with power to sub-delegate. That Committee in turn has sub-delegated to what is referred to as "management", the power, inter alia, to delist.
It seems that the initial decision to delist, unless an appeal was lodged, was a decision made by management. There is nothing in the Articles of Association or any document in evidence which permits an appeal from a decision to delist and, a fortiori, no provision which indicates the procedure to be adopted. On the evidence, therefore, there is much to be said for the view that the so-called right of appeal is an internal process of the Exchange and in reality
part of its decision-making process. But whether this is a correct analysis or whether the correct analysis is that management has made a decision which it has stayed in the event of the lodgement of the so-called appeal, it would seem clear that the National Listing Committee would have no power to remove Chapmans from the Official List in circumstances where Rule 3J(15) is applicable unless there had first been given three months' notice to Chapmans during which time Chapmans could endeavour to satisfy the Exchange. Notice not having yet been given to Chapmans, it is clear no valid decision to delist could have been made. A fortiori there could be no competent appeal from such a decision. Assuming the National Listing Committee is part of the original decision making process so that its deliberations do not constitute an appeal, it could still not proceed to delist Chapmans unless it had first given the notice under Rule 3J(15) and the opportunity thereafter for Chapmans to comply with outstanding requisitions.
CONSEQUENCES OF THE DECISION ON APPEAL
The Exchange takes the view that pending the so-called appeal, the name of Chapmans still remains on the Official List. That would be a consequence of the original decision of management being conditional upon the outcome of the appeal. It would in any event follow from the conclusion that the decision of management was void. The question, which then arises, is what, if any relief the Court should give.
Until the provisions of Rule 3J(15) are complied with by the Exchange there can be no valid decision to delist, nor could there be any valid appeal. In the absence of evidence of the basis of any appeal right it would seem inappropriate for the Court to restrain the holding of an appeal. The present proceedings are premature in that unless and until the Exchange notifies Chapmans under Rule 3J(15), it could not proceed to remove Chapmans' name from the List for failure to comply with the requisitions made by it.
In the circumstances the appropriate order would seem to be merely to dismiss the application. No doubt the parties will have regard to our reasons when determining what further action should be taken. No question at this stage will arise as to the giving of reasons by the Exchange for the simple reason that it has not yet made any valid operative decision to remove the name of Chapmans from the Official List for which reasons could be demanded.
This does not mean that Chapmans has been completely unsuccessful in the appeal or that its application was entirely misconceived. It is for this reason that a question arises as to costs, not merely as to the costs below but also the costs of the appeal, as on any view of the matter both sides have had some success.