Australian Securities and Investments Commission v Big Star Energy Limited - [2020] FCA 1442 - FCA 2020 case summary — Zoe

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Australian Securities and Investments Commission v Big Star Energy Limited

[2020] FCA 1442

Federal Court of Australia|2020-10-09|Before: Smith J

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Court

Federal Court of Australia

Decision date

2020-10-09

Before

Smith J

Source

Original judgment source is linked above.

Judgment (85 paragraphs)

[1]

Introduction 1 Over the course of a week in September 2015, the first defendant, a company listed on the Australian Stock Exchange (ASX) and then known as Antares Energy Limited (Antares), announced to the market that it had entered into two agreements to sell resources assets located in Texas, in the United States of America. 2 Trading in shares in Antares immediately following the announcements was elevated and the share price jumped, initially by some 250%. 3 The Australian Securities and Investment Commission (ASIC) alleges that Antares failed to disclose important information to the market at the time of the announcements in breach of its obligations of continuous disclosure. It alleges that Antares should have disclosed the name of the prospective purchaser. In the alternative, it alleges that Antares should have disclosed the following cumulative information: (a) the name of the prospective purchaser; (b) that Antares' Chairman and Chief Executive Officer, Mr James Cruickshank, had been told that the purchaser did not have financial approval in place for both relevant acquisitions; and (c) that Antares had not independently verified or otherwise determined the capacity of the purchaser to complete the acquisitions. 4 Some days after the initial announcements to the market about the sale agreements, trading in shares in Antares was halted at the request of Antares and ultimately suspended by the ASX. 5 ASIC has brought these proceedings seeking declarations and orders under the Corporations Act 2001 (Cth) as to Antares' alleged breaches of its continuous disclosure obligations. ASIC also seeks relief against Mr Cruickshank on the basis that he was involved in the contraventions by Antares and breached his duties as a director of the company. 6 The question of whether there have been any contraventions or any breach of duty is to be determined in these proceedings. The question of any relief is to be determined separately in a later hearing as required. 7 Antares is now known as Big Star Energy Limited. I will refer to it as Antares in these reasons as that was its name at the relevant time and in the evidence. At the time the proceedings commenced, Antares was in administration, but that is no longer the case. Antares has submitted to any order that the Court may make in these proceedings save as to costs, and subject to any further order was excused from taking part in the proceedings.

[5]

Witnesses 16 ASIC relied on the evidence of four witnesses. 17 Mr Vincent Geneste was a member of the ASIC investigation team with respect to the alleged contraventions by the defendants. He compiled many of the documents that were included in the Court Book. His affidavit relates primarily to forensic and provenance aspects of the document production and he was not required for cross-examination. 18 Mr James Rowe was at the time of the hearing the State Manager for the Perth office of ASX Limited (which operates the financial market known as the ASX). Mr Rowe was responsible for the overall supervision of all entities whose securities are listed on the ASX with a connection to Western Australia such that Perth is regarded as their 'home branch'. Those entities included Antares. If a matter needed to be escalated above Mr Rowe, it was referred to the General Manager of Listings and Compliance or the Chief Compliance Officer, both based in Sydney. Mr Rowe gave evidence as to his dealings with Antares and was cross-examined for over a day. 19 Ms Anjuli Sinniah was at the time of the events a listings advisor in the Perth office of the ASX. Mr Rowe explained that the hierarchy of listing advisors was advisors, senior advisors and then principal advisors. At the time of the hearing Ms Sinniah was a senior advisor. In 2015 Ms Sinniah was responsible for monitoring announcements that were made by companies within a designated group; seeking to ensure those listed entities complied with the Listing Rules and continuous disclosure obligations under the Corporations Act; dealing with complaints as to holdings by unlisted entities; and monitoring compliance by listed entities with the requirements for significant transactions. Some of these matters are discussed further below. Relevantly, Ms Sinniah was responsible in 2015 for Antares (which then had the ASX ticker code 'AZZ'). Ms Sinniah and Mr Mauro Piccini were the ASX listings advisor and senior listings advisor respectively within Mr Rowe's larger team. Ms Sinniah was cross-examined. 20 Mr Lee Bowers provided an expert's report for the purpose of the proceedings. Mr Bowers is a boutique corporate adviser and equity market consultant. His experience includes advising corporate clients, predominantly mining and exploration companies, on likely investor reaction and share price movements in relation to new pieces of information (for example, potential acquisitions). His experience includes over 15 years of direct interaction with institutional and retail investors and advice to corporate clients and is expanded upon below. Mr Bowers was cross-examined extensively. 21 After pre-trial service of ASIC's affidavits, Mr Cruickshank filed an affidavit that he had sworn. At the conclusion of ASIC's case senior counsel for Mr Cruickshank informed the Court and ASIC that Mr Cruickshank would not give evidence. 22 Mr Cruickshank relies on the affidavit of Mr Clohessy. Mr Clohessy was not cross-examined. There were numerous objections to parts of Mr Clohessy's affidavit and I will return to those objections. 23 Mr Cruickshank also tendered an expert's report of Mr Donald Looper. Mr Looper is a lawyer in Texas with some 40 years' experience of practice relating to the oil industry. His report addressed whether there was a standard or common practice of maintaining confidentiality of the terms and information about transacting parties in the US oil and gas sector. The report was not the subject of sworn evidence. Mr Looper was not required for cross-examination.

[6]

The standard and onus of proof 24 Section 140(1) of the Evidence Act 1995 (Cth) prescribes the standard of proof as to which the court must be satisfied in a civil proceeding as the balance of probabilities. Section 140(2) provides that the court is to take into account, in deciding whether it is so satisfied, the nature of the cause of action or defence, the nature of the subject matter of the proceeding and the gravity of the matters alleged. 25 Plainly ASIC bears the burden of proving its case. However, to the extent Mr Cruickshank raised what ASIC described as 'affirmative defences', ASIC does not bear that onus. 26 As explained by Perram J in Australian Competition and Consumer Commission v Air New Zealand Limited [2014] FCA 1157 at [488] (not disturbed on appeal), in some cases a defence will operate by denying factual matters which are necessary ingredients in the applicant's case. In those cases, the onus will lie upon that party to prove that matter and not on the defendant to disprove it. But where a defence consists of a matter of exculpation or excuse, then the onus will lie on the party asserting the exculpation or excuse to prove the facts said to justify it. This is consistent with the general principle enunciated by Walsh JA in Currie v Dempsey (1967) 69 SR (NSW) 116 at 125: [T]he burden of proof [in the sense of establishing a case] lies on a plaintiff, if the fact alleged (whether affirmative or negative in form) is an essential element in his cause of action, e.g., if its existence is a condition precedent to his right to maintain the action. The onus is on the defendant, if the allegation is not a denial of an essential ingredient in the cause of action, but is one which, if established, will constitute a good defence, that is, an 'avoidance' of the claim which, prima facie, the plaintiff has. 27 In this case, Mr Cruickshank has advanced affirmative claims including that Antares was contractually bound by a confidentiality term or requirement and that Wade Energy 'would walk away' if its name were disclosed, that Mr Cruickshank took all reasonable steps to ensure Antares complied with its obligations and that he exercised his business judgement in good faith. These matters are advanced by Mr Cruickshank's Concise Response filed in the proceedings (see Part F below). No issue of penalty privilege was raised or agitated before me orally or in the written submissions.

[7]

The drawing of inferences 28 As noted above, Mr Cruickshank did not give evidence. Mr Cruickshank was the senior executive of Antares with direct knowledge of matters relating to its affairs. 29 A finding may be made in the absence of direct evidence. And here we are concerned with probabilities, not possibilities: Bradshaw v McEwans (1951) 217 ALR 1 at 5 (Dixon, Williams, Webb, Fullagar and Kitto JJ). As Beach J said in Australian Competition and Consumer Commission v Olex Australia Pty Ltd [2017] FCA 222: [479] A finding may be made in the absence of direct evidence. All that is necessary is that the more probable inference from the circumstances that sufficiently appear by evidence, left unexplained, justifies the conclusion. 'More probable' means no more than that upon the balance of probabilities, such an inference has a greater degree of likelihood. A party who relies on circumstantial evidence must show that the circumstances raise the more probable inference in favour of what is alleged. It is not sufficient that the circumstances give rise to conflicting inferences of an equal degree of probability or plausibility or that the choice between them can only be made by conjecture. I accept though that the process of inference may involve an intuitive element that is not susceptible to detailed support or explanation. 30 In the absence of direct evidence from Mr Cruickshank it will be necessary to draw inferences from the available evidence, including the body of documentary evidence. It is permissible to draw inferences from a combination of facts: Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 534-535. 31 ASIC bears the onus of establishing that the inferences for which it contends should be found to exist on the balance of probabilities: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466 at [38] (Weinberg, Bennett and Rares JJ). An endeavour by Mr Cruickshank to show that there is an alternative innocent hypothesis will only be useful if the hypothesis is 'more likely than not'. In that context, and unlike the criminal law, it will not suffice to point only to the fact of a reasonable hypothesis consistent with innocence: ACCC v Air New Zealand Ltd at [478]-[481].

[8]

Jones v Dunkel 32 ASIC submits that it is open to me to draw inferences in accordance with the rule in Jones v Dunkel, having regard to the unexplained absence of Mr Cruickshank: Jones v Dunkel (1959) 101 CLR 298 at 312 (Menzies J). 33 Two inferences are available under the rule in Jones v Dunkel. First, a court might infer that the evidence of the absent witness would not have assisted the party that failed to call that witness; second, a court might draw, with greater confidence, any inference unfavourable to the party that failed to call that witness, if that witness appears to be in a position to cast light on whether the inference should be drawn: Manly Council v Byrne [2004] NSWCA 123 at [51] (Campbell J, with whom Beazley JA and Pearlman AJA agreed); and Australian Securities and Investments Commission v Macdonald (No 11) [2009] NSWSC 287 at [1137] (Gzell J). 34 The rule was elucidated by Glass JA in Payne v Parker [1976] 1 NSWLR 191 at 201-202 in passages which have been widely accepted and adopted. His Honour said that whether Jones v Dunkel should be applied depends on establishing three conditions: (a) the missing witness would be expected to be called by one party rather than the other; (b) their evidence would elucidate a particular matter; and (c) their absence is unexplained. 35 His Honour continued: According to Wigmore, par 285, the second condition is fulfilled where the party or his opponent claims that the facts would thereby be elucidated. Under other formulations, the condition is made out when the witness is presumably able to put a true complexion on the facts …, might have proved the contrary …; would have a close knowledge of the facts …, or where it appears that he had knowledge … I would think it in-sufficient to meet the requirements of principle that one party merely claims that the missing witness has knowledge, or that, upon the evidence, he may have knowledge. Unless, upon the evidence, the tribunal of fact is entitled to conclude that he probably would have knowledge, there would seem to be no basis for any adverse deduction from the failure to call him. 36 ASIC's case relies primarily, but not solely, on documentary evidence. Mr Cruickshank submits that inferences are to be drawn from documents before considering any question of Jones v Dunkel and that Jones v Dunkel is not to be used in determining what inferences should be drawn from documents. This argument, said to be based on Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152, was made in and rejected by Gilmour J in Australian Securities and Investments Commission v Fortescue Metals Group Ltd (No 5) [2009] FCA 1586 (ASIC v Fortescue (TJ)). The argument was not considered relevant to the resolution of the appeal: Australian Securities and Investments Commission v Fortescue Metals Group Ltd [2011] FCAFC 19; (2011) 190 FCR 364 at [81] (Keane CJ) (ASIC v Fortescue (FC)). 37 The relevant paragraphs of Gilmour J's reasons provide: [106] Before stating my conclusion on whether I ought to make any Jones v Dunkel inferences, I will deal with the final authority cited by Forrest, Singh v Minister for Immigration (2001) 109 FCR 152, from which he submits the following propositions emerge: that inferences are to be drawn from the documents before considering any question of Jones v Dunkel; and that a Jones v Dunkel inference is not to be used in determining what inference ought to be drawn from the documents. In Singh, the applicant sought judicial review of a Ministerial decision to refuse to grant a spouse visa on character grounds. The Minister's reasons for decision were given in two documents: a decision record and a statement of reasons. The applicant argued that the Minister erred in making his decision by failing to have regard to the character references in support of the applicant which were annexed to a letter attached to the decision record. The Minister did not give evidence at trial, but Sackville J found that the statement of reasons provided affirmative evidence that the Minister gave consideration to the contents of the character references. The inferences that the applicant sought to draw by the Minister's failure to give evidence were contradicted by the Minister's statement of reasons. [107] In my view, what Sackville J said in Singh concerning the application of the Jones v Dunkel principle to the case before him is merely an application of the second condition given by Glass JA in Payne at p 201 as to whether the principle can or should be applied, namely whether the evidence of the missing witness would elucidate a particular matter. There was no occasion to draw an inference from the Minister's failure to give evidence because in his Honour's view, the question of whether he took into account the character references was adequately addressed by the statement of reasons. 38 Properly understood, nothing in Gilmour J's consideration of Singh or Jones v Dunkel suggests that a Jones v Dunkel inference cannot be drawn in determining the inferences that may be drawn from documents in general. Singh concerned a particular document (the Minister's statement of reasons) and turned on its facts. Neither Singh nor ASIC v Fortescue (TJ) stand for a broader proposition that a witness can never shed light on a document or the inferences that naturally arise from that document. 39 Finally, the authorities establish that the rule in Jones v Dunkel is available in civil penalty proceedings and is available against either party: Adler v Australian Securities and Investments Commission [2003] NSWSC 131 at [659]-[661] (Giles JA, with whom Mason P and Beazley JA agreed); Adams v Director of the Fair Work Building Industry Inspectorate [2017] FCAFC 228; (2017) 258 FCR 257 at [147] (North, Dowsett and Rares JJ); Communications, Electrical, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v ACCC at [28], [76]; and ASIC v Fortescue (TJ) at [85]-[100]. 40 It will be necessary to deal in due course with the application of Jones v Dunkel to the circumstances of this case.

[9]

Business records and hearsay 41 In the present case, ASIC took the unexceptional course of tendering documents that included certain business records of Antares. 42 Regardless of the basis of the admission of the documents, the question remains as to what weight a court might properly place on the facts asserted in documents in the absence of any direct evidence of the existence of those asserted facts. As explained by Cooper J in Lardil, Kaiadilt, Yangkaal, Gangalidda Peoples v State of Queensland [2000] FCA 1548 at [26]: For reasons given earlier, s 60 [of the Evidence Act] does not give to the hearsay evidence a weight or cogency which the circumstances do not warrant. The absence of an order under s 136 of the Act does not prevent the respondents from contending that in the circumstances of this case the hearsay statements should be given little or no weight and should not be relied upon. Relevantly, those circumstances include the fact that no attempt has been made to tender original evidence of the contents of the hearsay statements when the witnesses gave evidence, the failure to call some witnesses at all, and that fact that certain oral evidence is inconsistent with the previous hearsay statement. See also Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 at [57] (Perram J). 43 A court is plainly able to evaluate the weight or cogency of the material contained in documents and draw relevant inferences. For example, it is open to take into account the absence of any cross-examination or testing of the evidence. It is open to take into account the atmosphere or context in which a document is prepared that might cause it to be self-serving: Vitali v Stachnik [2001] NSWSC 303 at [13] (Barrett J). Also relevant is the nature of the document and whether it is a 'canonical business record' to which s 69 of the Evidence Act is directed or something created with, for example the purpose of persuasion: Australian Competition and Consumer Commission v Air New Zealand Limited (No 7) [2013] FCA 83; (2013) 209 FCR 361 at [23] (Perram J). The mere fact of admissibility of hearsay evidence in a business record does not determine its weight.

[10]

Discovering knowledge of a company 44 As set out below, Listing Rule 19.12 is of particular relevance as to whether a company is aware of information that must be disclosed. It provides, in summary, that a company is so aware as soon as an officer of the entity has or ought to have come into possession of the relevant information in their capacity as an officer of the company. 45 More generally, to discover what a corporation knows it is necessary to ascertain what certain individuals within the corporation know: Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705; and Hamilton v Whitehead [1988] HCA 65; (1988) 166 CLR 121 at 127. As described by Owen J in The Bell Group Ltd (In liq) v Westpac Banking Corporation [No 9] [2008] WASC 239; (2008) 39 WAR 1: [907] … To speak of a corporation having a state of mind is almost orphic in its conception. A corporation is a legal entity separate and apart from its directors and shareholders. It can only act through the intervention of the human condition. 46 The conventional approach of identifying the person who is the 'directing mind and will' is not always apt and its application will depend on matters such as the variable function of those holding office and the context in which knowledge of a company is to be considered: see generally the analysis of Beach J in Australian Securities and Investments Commission v Westpac Banking Corporation (No 2) [2018] FCA 751; (2018) 266 FCR 147 at [1658]-[1662]; and in Hurd v Zomojo Pty Ltd [2015] FCAFC 148 at [168] (Besanko, Gilmour and Beach JJ). 47 The circumstances in which knowledge of persons might be aggregated and attributed to a company were discussed in the context of unconscionable conduct and statutory terms by the Full Court in Commonwealth Bank of Australia v Kojic [2016] FCAFC 186; (2016) 249 FCR 421 at [62]-[66] (Allsop CJ), [73]-[83] (Besanko J), [106]-[118] (Edelman J). Put generally, the Full Court determined that the concept of aggregated corporate knowledge cannot be applied in order to reach a conclusion that a corporation has acted unconscionably (within the meaning of s 51AB or s 51AC of the Trade Practices Act 1974 (Cth)). In so determining, the Full Court disagreed with the analysis of Drummond AJA, with whom Lee AJA agreed, in Westpac Banking Corporation v The Bell Group Ltd (in liq) (No 3) [2012] WASCA 157; (2012) 44 WAR 1: see especially Kojic at [65] (Allsop CJ), [73], [81] (Besanko J), [118], [146]-[149] (Edelman J). 48 The question of aggregated knowledge does not squarely arise in this case, where the evidence points strongly to Mr Cruickshank being the directing or guiding mind and will, the decision-maker and the person with direct knowledge of negotiations between Antares and Wade Energy. The evidence and available inferences support the view that neither Mr Smith nor Mr Clohessy had direct knowledge of such matters but were told things or instructed by Mr Cruickshank. I will return to the evidence below.

[11]

The statutory and regulatory regime 49 By way of general summary, ASIC has responsibility for supervision of real-time trading on the ASX. It is responsible for enforcement of the laws against misconduct in Australia's financial markets. It supervises Australian financial services licence holders: see generally Part 7.2A of the Corporations Act. It publishes and maintains the ASIC Market Integrity Rules. 50 The main statutory purpose of the continuous disclosure regime is to achieve a well-informed market, leading to greater investor confidence. The object is to enhance the integrity and efficiency of capital markets by requiring timely disclosure of price or market sensitive information: James Hardie Industries NV v Australian Securities and Investments Commission [2010] NSWCA 332 at [353]-[355] (Spigelman CJ, Beazley and Giles JJA); and Grant-Taylor v Babcock & Brown Limited (in liq) [2016] FCAFC 60; (2016) 245 FCR 402 at [92] (Allsop CJ, Gilmour and Beach JJ) (Grant-Taylor v Babcock & Brown (FC)). 51 The ASX publishes and maintains Listing Rules. The Listing Rules apply to all entities admitted to the ASX Official List. The Listing Rules provide that an entity must comply with the rules as interpreted in accordance with their spirit, intention and purpose; by looking beyond form to substance; and in a way that best promotes the principles on which the Listing Rules are based (Rule 19.2 - reproduced below). 52 The disclosure requirements within the Listing Rules have statutory force by s 674 of the Corporations Act. It is not in issue that Antares was obliged to comply with the Listing Rules. It was at all times a listed disclosing entity: see generally Grant-Taylor v Babcock & Brown (FC) at [50]. 53 The ASX also publishes a Guidance Note to assist listed entities to understand and comply with their disclosure obligations under Listing Rules 3.1, 3.1A and 3.1B. That Guidance Note is known as Guidance Note 8. Guidance Note 8 does not have statutory force but the ASX states in the note that it reflects the ASX's position as to how the law is intended to operate. 54 It is useful here to reproduce the relevant extracts from the legislation, Listing Rules and Guidance Note 8. 55 Section 674 of the Corporations Act provided at the relevant time: Continuous disclosure - listed disclosing entity bound by a disclosure requirement in market listing rules Obligation to disclose in accordance with listing rules (1) Subsection (2) applies to a listed disclosing entity if provisions of the listing rules of a listing market in relation to that entity require the entity to notify the market operator of information about specified events or matters as they arise for the purpose of the operator making that information available to participants in the market. (2) If: (a) this subsection applies to a listed disclosing entity; and (b) the entity has information that those provisions require the entity to notify to the market operator; and (c) that information: (i) is not generally available; and (ii) is information that a reasonable person would expect, if it were generally available, to have a material effect on the price or value of ED securities of the entity; the entity must notify the market operator of that information in accordance with those provisions. Note 1: Failure to comply with this subsection is an offence (see subsection 1311(1)). Note 2: This subsection is also a civil penalty provision (see section 1317E). For relief from liability to a civil penalty relating to this subsection, see section 1317S. Note 3: An infringement notice may be issued for an alleged contravention of this subsection, see section 1317DAC. (2A) A person who is involved in a listed disclosing entity's contravention of subsection (2) contravenes this subsection. Note 1: This subsection is a civil penalty provision (see section 1317E). For relief from liability to a civil penalty relating to this subsection, see section 1317S. Note 2: Section 79 defines involved. (2B) A person does not contravene subsection (2A) if the person proves that they: (a) took all steps (if any) that were reasonable in the circumstances to ensure that the listed disclosing entity complied with its obligations under subsection (2); and (b) after doing so, believed on reasonable grounds that the listed disclosing entity was complying with its obligations under that subsection. (3) For the purposes of the application of subsection (2) to a listed disclosing entity that is an undertaking to which interests in a registered scheme relate, the obligation of the entity to notify the market operator of information is an obligation of the responsible entity. (4) Nothing in subsection (2) is intended to affect or limit the situations in which action can be taken (otherwise than by way of a prosecution for an offence based on subsection (2)) in respect of a failure to comply with provisions referred to in subsection (1). … 56 Section 676 provides: Sections 674 and 675 - when information is generally available (1) This section has effect for the purposes of sections 674 and 675. (2) Information is generally available if: (a) it consists of readily observable matter; or (b) without limiting the generality of paragraph (a), both of the following subparagraphs apply: (i) it has been made known in a manner that would, or would be likely to, bring it to the attention of persons who commonly invest in securities of a kind whose price or value might be affected by the information; and (ii) since it was so made known, a reasonable period for it to be disseminated among such persons has elapsed. (3) Information is also generally available if it consists of deductions, conclusions or inferences made or drawn from either or both of the following: (a) information referred to in paragraph (2)(a); (b) information made known as mentioned in subparagraph (2)(b)(i). 57 Section 677 provides: Sections 674 and 675 - material effect on price or value For the purposes of sections 674 and 675, a reasonable person would be taken to expect information to have a material effect on the price or value of ED securities of a disclosing entity if the information would, or would be likely to, influence persons who commonly invest in securities in deciding whether to acquire or dispose of the ED securities. 58 The Listing Rules have been amended on a number of occasions. The version contained in the joint authorities bundle is the version said to have applied at the relevant time. At that time, Listing Rules 3.1 and 3.1A (including notes) provided: Immediate notice of material information General rule 3.1 Once an entity is or becomes aware of any information concerning it that a reasonable person would expect to have a material effect on the price or value of the entity's securities, the entity must immediately tell ASX that information. Introduced 01/07/96 Origin: Listing Rule 3A(1) Amended 01/07/00, 01/01/03, 01/05/13 Note: Section 677 of the Corporations Act defines material effect on price or value. As at 1 May 2013 it said for the purpose of sections 674 and 675 a reasonable person would be taken to expect information to have a material effect on the price or value of securities if the information would, or would be likely to, influence persons who commonly invest in securities in deciding whether or not to subscribe for, or buy or sell, the first mentioned securities. 'Information' may include information necessary to prevent or correct a false market, see Listing Rule 3.1B. It may also include matters of supposition and other matters that are insufficiently definite to warrant disclosure to the market, and matters relating to the intentions, or likely intentions, of a person (see Listing Rule 19.12). A confidentiality agreement cannot prevent an entity from complying with its obligations under the Listing Rules and, in particular, its obligation to give ASX information for release to the market where required by the Listing Rules. Examples: The following are non-exhaustive examples of the type of information that, depending on the circumstances, could require disclosure by an entity under this rule: • a transaction that will lead to a significant change in the nature or scale of the entity's activities (see also Listing Rule 11.1 and Guidance Note 12 Significant Changes to Activities); • a material mineral or hydro-carbon discovery; • a material acquisition or disposal; • the granting or withdrawal of a material licence; • the entry into, variation or termination of a material agreement; • becoming a plaintiff or defendant in a material law suit; • the fact that the entity's earnings will be materially different from market expectations; • the appointment of a liquidator, administrator or receiver; • the commission of an event of default under, or other event entitling a financier to terminate, a material financing facility; • under subscriptions or over subscriptions to an issue of securities (a proposed issue of securities is separately notifiable to ASX under listing rule 3.10.3); • giving or receiving a notice of intention to make a takeover; and • any rating applied by a rating agency to an entity or its securities and any change to such a rating. Cross-reference: Listing Rules 3.1A, 3.1B, 5.18, 15.7, 18.7A, 19.2, Guidance Note 8 Continuous Disclosure: Listing Rules 3.1-3.1B. Exception to rule 3.1 3.1A Listing rule 3.1 does not apply to particular information while each of the following is satisfied in relation to the information: 3.1A.1 One or more of the following 5 situations applies: • It would be a breach of a law to disclose the information; • The information concerns an incomplete proposal or negotiation; • The information comprises matters of supposition or is insufficiently definite to warrant disclosure; • The information is generated for the internal management purposes of the entity; or • The information is a trade secret; and 3.1A.2 The information is confidential and ASX has not formed the view that the information has ceased to be confidential; and 3.1A.3 A reasonable person would not expect the information to be disclosed. Introduced 01/01/03 Amended 01/05/13 Cross-reference: Listing Rules 3.1, 3.1B, 18.8A; Guidance Note 8 Continuous Disclosure: Listing Rules 3.1-3.1B. 59 Listing Rule 19 relates to matters of interpretation. Relevantly, r 19.1 and r 19.2 (including notes) provided at the relevant time: Interpretation Principles on which the listing rules are based 19.1 The listing rules are based on the principles set out in the Introduction. Introduced 1/7/96. Entity must comply with spirit, intention and purpose etc of rules 19.2 An entity must comply with the listing rules as interpreted: • in accordance with their spirit, intention and purpose; • by looking beyond form to substance; and • in a way that best promotes the principles on which the listing rules are based. Introduced 1/7/96. Origin: Foreword. Note: The principles on which the listing rules are based embody their intention and purpose. See the Introduction. 60 Listing Rule 19.12 (definitions) is also relevant. It relevantly provided at the material time that the expression 'aware' has the following meaning: an entity becomes aware of information if, and as soon as, an officer of the entity (or, in the case of a trust, an officer of the responsible entity) has, or ought reasonably to have, come into possession of the information in the course of the performance of their duties as an officer of that entity. 61 Listing Rule 19.12 defined 'information' as follows: for the purposes of Listing Rules 3.1 [and] 3.1B, information includes: (a) matters of supposition and other matters that are insufficiently definite to warrant disclosure to the market; and (b) matters relating to the intentions, or likely intentions, of a person. 62 Guidance Note 8 is extensive. The parties referred in particular to cl 4.15 of Guidance Note 8 which states in part: 4.15 Guidelines on the contents of announcements under Listing Rule 3.1 Wherever possible, an announcement under Listing Rule 3.1 should contain sufficient detail for investors or their professional advisers to understand its ramifications and to assess its impact on the price or value of the entity's securities. For example, depending on the circumstances, an announcement about the signing of a contract relating to a significant acquisition or disposal might include information about: • the parties to the contract; • the assets or businesses proposed to be acquired or disposed of; • any material conditions that need to be satisfied before the agreement becomes legally binding or proceeds to completion; • the likely effect of the transaction on the entity's total assets, total equity interests, annual revenue (or, in the case of a mining exploration entity or other entity that is not earning material revenue from operations, annual expenditure) and annual profit before tax and extraordinary items; • any issue of securities proposed as part of, or in conjunction with, the transaction, including its effect on the total issued capital of the entity and the purposes for which the funds raised will be used; • any changes to the board or senior management proposed as a consequence of the transaction; and • the timetable for implementing the transaction. (footnotes omitted) 63 Other parts of Guidance Note 8 address matters such as the policy objectives of the continuous disclosure regime (cl 3); the need to comply with disclosure obligations even if it does not appear to be in the short term interests of the company to do so, for example, because it might jeopardise a transaction it is trying to conclude (cl 4.21); and the obligation on the company to disclose information even where it is a party to a confidentiality or non-disclosure agreement that might otherwise require it to keep information confidential (cl 4.22).

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A preliminary note - time zones 68 Various submissions were made on behalf of Mr Cruickshank to the effect that the Court needed to be cautious in accepting at face value time stamps on the face of the email exchanges, taking into account that Mr Cruickshank was (at times) receiving and sending emails from the United States and that emails sent and received in Australia may record either Australian Western Standard Time (AWST) or Australian Eastern Standard Time (AEST). I accept the need to be careful in what is not an uncommon scenario with email exchanges. For consistency I have referred to particular times by reference to AWST or AEST. In general, I accept ASIC's submission that the time stamps on emails can be understood as follows: (a) the time '08.00 am +1000' refers to AEST and records that the relevant email was sent at 8.00 am AEST; (b) the time '08.00 am +0800' refers to AWST and records that the relevant email was sent at 8.00 am AWST; and (c) the time '08.00 am' records that the relevant email was sent at 8.00 am local time, whatever that may be. 69 ASIC submits that at all material times during September 2015 AWST was two hours behind AEST. The time in Texas (American Central Daylight Time) was 15 hours behind AEST and 13 hours behind AWST. The time in London (British Summer Time) was nine hours behind AEST. Mr Cruickshank did not admit these matters. Taking into account s 71(b) and s 144 of the Evidence Act, my review of the sequence of the emails and common knowledge as to the time differences between regions, I accept that the time differences indicated by ASIC are accurate. 70 I have also taken into account that on particular dates during the period with which these proceedings are concerned, and based on his emails, Mr Cruickshank was in Perth, Texas or London. 71 In the circumstances of this case, the content, context and flow of the email exchanges was such that I am satisfied that the times that I have included and the order of events below are accurate and depict the chronology of events.

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5 and 6 September 2015 - agreements entered into 74 On 5 September 2015 Antares, by its ultimate wholly owned subsidiary Antares US, entered into purchase and sale agreements with Wade Energy for the sale of the Northern Star Assets for US$148,788,560 and for the sale of the Big Star Assets for US$105,069,420. Those purchase and sale agreements are referred to as the Northern Star PSA and the Big Star PSA respectively, or collectively as the PSAs. Mr Cruickshank signed the PSAs on behalf of Antares. 75 The Northern Star PSA provided that the purchase price was US$148,788,560 with closing on or before 21 September 2015. 76 The Big Star PSA provided that the purchase price was US $105,069,420 with closing on or before 30 November 2015. 77 Otherwise, the terms of the PSAs were for all intents and purposes the same. Notably, there was no express term in either PSA requiring the terms of the agreements or the identity of the buyer to remain confidential. There was no requirement for a deposit to be paid. There was no provision for default penalties. There was no 'subject to finance' clause. There was a 'complete agreement' clause. 78 It appears that Mr Cruickshank was in Australia on the weekend of 5 and 6 September 2015. He signed the PSAs and forwarded signed copies to Mr Hanson in the early hours of Saturday morning (1.53 am AWST) under cover of an email that said: … I will call you Saturday morning your Friday night to discuss our mutual progress towards closing both of these transactions on or before 30th November 2015. 79 On Sunday 6 September 2015 at 6.01 am AWST Mr Cruickshank received an email from Mr Hanson (and referred to by Mr Bowers in these proceedings as the Funding Email) that stated: James, I got approval on my secondary lender for Northern Star only. I am working with another on Big Star. If your Houston group is ready to move on Big Star, it is your call. I [won't] know anything on Big Star [u]ntil midweek. I missed your call last night, but I will give you a call around 9 am your time. Barry 80 Mr Cruickshank replied at 8.15 am AWST: Barry, Congratulations on your approval for Northern Star, I had no doubt you would achieve success. Additionally, I have no doubt you will ultimately be successful on Big Star so we will be patient as we have exchanged executed Purchase and Sale Agreements and thus you have time on your side. Well done and congratulations once again, James 81 At 9.58 am AWST that day Mr Cruickshank emailed a copy of an ASX announcement to Mr Smith and asked that it be released to the ASX 'as soon as possible and definitely prior to the market opening'. 82 Mr Smith sent an updated version to the ASX later that day (4.21 pm AWST) and also circulated a copy to the directors. The 'update' was an inconsequential change to include reference to an 'effective date 1st September 2015'.

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7 September 2015 - First and Second PSA Announcements 83 On Monday 7 September 2015 the following announcement was released to the market (First PSA Announcement): ANTARES ENERGY EXECUTES PURCHASE AND SALE AGREEMENTS NORTHERN STAR 148,788,560 USD BIG STAR 105,069,420 USD The Directors of Antares Energy Limited (ASX:AZZ) are pleased to advise of the execution of two independent Purchase and Sale Agreements with the same Private Equity purchaser for the sale of Northern Star in the amount of 148,788,560 USD and Big Star in the amount [of] 105,069,420 USD. The closing of these two independent Purchase and Sale Agreements with the same Private Equity purchaser will be on or before the 30th November 2015 and is subject to usual commercial closing conditions and adjustments. The gross pretax proceeds from these transactions are expected to be approximately 250,000,000 USD which will be subject to customary closing adjustments, taxation and frictional costs. James Cruickshank, Antares' CEO said, 'We are pleased to have executed two independent Purchase and Sale Agreements with the same Private Equity purchaser for both of our Permian Projects being Northern Star and Big Star. This represents another step forward in our Permian Portfolio Strategy of creating, developing, producing and realizing value from our project assets. We look forward to closing both of these transactions.' A Summary Of The Key Highlights Of The Transaction Include: - Northern Star gross pretax sale proceeds 148,788,560 USD - Southern Star [sic] gross pretax sale proceeds 105,069,420 USD - Closing date on or before 30th November 2015 - Private Equity purchaser - Effective date 1st September 2015 - Shareholder meeting information to be announced in due course 84 The release to the market was at 6.27 am AWST/8.27 am AEST on 7 September 2015 by what Mr Rowe described as an automated release from the ASX's system known as its Market Announcement Platform, or 'MAP'. 85 Shortly afterwards (9.28 am AWST) Mr Smith emailed a revised copy of the announcement to Mr Cruickshank and Ms McAppion, correcting the reference in the summary bullet points from 'Southern Star' to 'Big Star'. 86 At 9.41 am AWST a second announcement with that error corrected was provided to the ASX and released by MAP at 9.44 am AWST (Second PSA Announcement). Nothing material arises out of the correction (the announcements are referred to collectively as the PSA Announcements). 87 On the same day (at 10.31 am AWST) Mr Cruickshank emailed Mr Smith and the other directors providing copies of the executed PSAs. There is no evidence Mr Smith had copies of the PSAs prior to that email.

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9 September 2015 - concerns raised by ASIC and ASX 88 Ms Sinniah's evidence was that on 9 September 2015 Mr Piccini told her he had received a phone call from ASIC regarding Antares' announcement to the market and expressing a concern that the purchaser and material terms had not been disclosed. On the same day Ms Sinniah (together with Mr Piccini) called Mr Smith and raised a number of matters about the PSA Announcements. Ms Sinniah recorded details of the call in a file note. 89 According to Ms Sinniah, the conversation was to the following effect: (1) Mr Piccini said that ASIC had contacted him regarding the announcement; (2) Mr Piccini said that additional disclosure was required as to whether Antares would retain an interest in Big Star or Northern Star after the sale and whether there were any conditions precedent: he said words to the effect 'We need more information on the material terms. Specifically the cash payment, conditions precedent and you need to name the purchaser'; (3) Mr Piccini asked about the identity of the purchaser and Mr Smith said that Antares did not propose to disclose that, and said that it was a cash deal and it required Antares 'to be confidential, otherwise the purchaser would not complete on the transaction'; (4) Mr Smith said words to the effect that, 'We have entered into these sorts of agreements with parties in the US before. The nature of these contracts is that if you name the counterparty, the purchaser will walk away'; (5) Mr Smith mentioned that there were a number of instances where Antares had put out announcements about sale and purchase agreements where the identity of the purchaser was not included, and said that it had not been an issue with the ASX; (6) Mr Piccini said that Guidance Note 8 states you do have to release the material terms and the name of the counterparty; (7) Mr Piccini raised the question of the sale being a disposal of Antares' main undertaking and Mr Smith said words to the effect that it was not a disposal of the main undertaking as they had other oil and gas assets at the time; (8) Mr Piccini requested a further announcement be made and that a draft be provided to him, and said that the announcement needed to go out as soon as possible and would deal with the matters that had been raised and were said not to be adequate or sufficient; (9) Mr Smith said a draft would need to go to the MD (the acronym used by senior counsel in cross-examination of Ms Sinniah and in context a reference to Mr Cruickshank); and (10) Mr Piccini raised the issue that if it were a disposal of the main undertaking Antares would have six months to find another asset or be suspended and may have to re-list. 90 After the phone call Mr Smith sent an email to Mr Cruickshank and the other directors, part of which read as follows: I received a call from the ASX today advising they had received a call from ASIC in relation to our announcement on Monday. They sought additional information to be released, being: Would the Company retain any interest in BS or NS after the sale. Any conditions precedent, and What was the makeup of the purchase price - cash and/or shares. They also asked about the identity of the purchaser and I advised we would not be disclosing this. A draft announcement is attached for review. ASX also asked about a shareholder meeting as this was a disposal of our main undertaking. The issue with disposing of a main undertaking is that Listing Rule 11.2 requires Companies to obtain shareholder approval if it plans to dispose of its main undertakings … If we seek shareholder approval for the sale of Big Star, it may be difficult to argue that the sale of Northern Star shouldn't have shareholder approval as well as they are both Permian assets and the transactions were signed within close proximity of each other. … 91 As the email indicated, a draft ASX clarification announcement was attached to the email to Mr Cruickshank and the other directors. It was in materially similar terms to that released to the market the next day (see immediately below).

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10 September 2015 - PSA Clarification Announcement and continuing concerns 92 On Thursday 10 September 2015 (9.10 am AWST) Mr Smith sent a draft ASX clarification announcement to Mr Piccini. Later that day (1.34 pm AWST) Mr Piccini emailed Mr Smith stating: Thanks Graeme, please release the announcement to the market. 93 The clarification announcement (PSA Clarification Announcement) was released to the market at 1.51 pm AWST, shortly before close of market. It read: PURCHASE AND SALE AGREEMENTS NORTHERN STAR & BIG STAR CLARIFICATION OF TERMS Antares Energy Limited (ASX:AZZ) is pleased to provide additional clarifying information in relation to the purchase and sale agreements signed for Northern Star & Big Star announced on 7 September 2015. The gross pretax proceeds from these transactions are expected to be approximately 250,000,000 USD which will be subject to customary closing adjustments, taxation and frictional costs. This amount will be paid in cash. There are no conditions precedent to be effected prior to settlement. Antares will not hold any remaining interest in either the Northern Star or Big Star projects after the sale, but will still retain an interest in other Texas projects. The sale of the Northern Star and Big Star projects is a continuation of Antares' main undertaking of developing for sale, and disposing of, oil and gas tenements, as in keeping with the divestment of the Southern Star project last year. A Summary Of The Key Highlights Of The Transaction Include: - Northern Star gross pretax sale proceeds 148,788,560 USD - cash payment only - Big Star gross pretax sale proceeds 105,069,420 USD - cash payment only - No conditions precedent - Closing date on or before 30th November 2015 - Private Equity purchaser - Effective date 1st September 2015 - Shareholder meeting information to be announced in due course 94 As is apparent, the PSA Clarification Announcement states that the payment is 'cash payment only', and that there are 'no conditions precedent'. It does not disclose the name of the purchaser. 95 Shortly afterwards (1.53 pm AWST) Mr Smith emailed a copy of the PSA Clarification Announcement to Mr Cruickshank and the other directors under cover of an email that read: As requested by ASIC and via ASX, attached is the latest ASX Announcement clarifying that no turtles were included in the sale price of Big Star or Northern Star and saying you sold something means you've sold it as opposed to saying you sold it but you get to keep a bit of it. (I'm sure I [saw] an episode of Yes Minister that covered this!) 96 Shortly after the PSA Clarification Announcement was released via MAP, Ms Sinniah and Mr Piccini discussed it further with a senior ASX listing advisor. Ms Sinniah was unable to recall who that person was. 97 At some point the ASX appears to have asked Mr Smith by telephone for copies of the PSAs, as Mr Smith sent an email to Mr Cruickshank (sent at around 3.00 pm AWST) and Ms McAppion stating: The ASX has requested a copy of the sale agreements. They said they need to be sure the purchaser has the capacity to [complete] the purchase in light of previous incidents, (such as padbury mining I assume). They advised this is something they are insisting on but they won't release details to the market. 98 There was then a further telephone conversation between Ms Sinniah, Mr Piccini and Mr Smith on 10 September 2015. Mr Smith recorded this in an email to Mr Cruickshank (3.08 pm AWST 10 September 2015) that said: ASX rang again and advised the following: ASIC has requested that the ASX obtain from Antares the following information for release to the market: 1. Name of the purchaser. 2. They noted the announcement said no conditions precedent and brought up the shareholder approval requirement under LR 11.2. I said that the agreement stated that corporate regulatory approvals will be required to be completed prior to the sale. They want this included in the announcement. Separately the ASX wants to know the level of due diligence undertaken by the Company to ensure the purchaser has the capacity to complete the purchase and a copy of the Agreement. We also have to go into a trading halt tomorrow morning until these matters are resolved or the ASX will suspend. Trading halts go for a maximum of 2 days. 99 Mr Smith's email is largely consistent with Ms Sinniah's file note of the conversation and oral evidence. Ms Sinniah gave the following evidence about the call with Mr Smith: (1) Mr Piccini said that ASIC had called again and raised two issues, being that the other party is to be named and that the announcement had referred to 'no conditions precedent' but shareholder approval would be a condition precedent; (2) there was an exchange about conditions precedent - Ms Sinniah did not recall any request as limited to the disclosure of a requirement of 'corporate regulatory approvals' but recalled that what was sought was an announcement of conditions precedent in the agreement and that Mr Piccini said that regulatory approvals still form a condition precedent; (3) there was a request for copies of the agreements; (4) Mr Piccini said the company needed to go into a trading halt if it could not name the purchaser and Mr Smith replied to the effect that Antares was not going to name the purchaser; (5) Mr Smith said that 'we've previously done the same thing with the ASX'; (6) Mr Smith said it was a cash sale and did not involve shares in other companies, and that was a reason why he did not have to name the purchaser; (7) Mr Piccini said words to the effect that two matters that had to be addressed in a further announcement were the name of the party and the issue of regulatory approval; (8) Mr Piccini also said that the ASX wanted to know the level of due diligence undertaken by Antares to ensure the purchaser had the capacity to complete; and (9) it was understood at the end of the meeting that Antares would have to go into a trading halt. 100 Later that evening (8.16 pm AWST) Mr Smith sent the following email to Mr Cruickshank and Ms McAppion, together with a draft request to the ASX for a trading halt. The email read as follows: James, How is this? I suspect the ASX may request the paragraph The information has been requested by ASIC and the ASX, and Antares requires time to prepare and discuss aspects of their request with them as this information is commercially sensitive. Be removed. As per our discussion this afternoon, I propose requesting a face to face meeting with the ASX to discuss the purchaser. As per your instructions I will advise ASX that we will not be releasing this information publicly for the following reasons: 1. The purchaser will walk away from the deal if they are named; 2. Disclosure of their name will result in any number of land holders, companies, brokers and middle men with land near Antares trying to persuade the purchaser to acquire their land rather than Antares land. 3. If either of these occur it will result in the Antares deal falling over which would be to the detriment of Antares shareholders. I will provide a copy of the PSA to the ASX to view the name of the purchaser on the strict condition that this not be released to any other party (including ASIC). I will leave a redacted copy of the PSA for their review. If the ASX is adamant that the purchaser be named I will advise that Antares will go into suspension until the deal is completed rather than disclose the name of the purchaser. In relation to the information request re due diligence I will advise that Antares is of the belief that the purchaser has funding for the transaction, however Antares has only ever, as required by LR 3.1, disclosed to the market that it has received a signed PSA for the acquisition but has made no claims as to whether the purchaser will complete, we have only ever stated exactly what we have and whilst it is our belief that the transaction will be completed we are unable to categorically state that the deal will be completed. Any other information you would like added? 101 The draft trading halt request read as follows: REQUEST FOR TRADING HALT - ANTARES ENERGY LIMITED (AZZ) In accordance with ASX Listing Rule 17.1, Antares Energy Limited requests an immediate trading halt pending the release of further information in relation to the purchase and sale agreements for the Northern Star and Big Star projects. The information has been requested by ASIC and the ASX, and Antares requires time to prepare and discuss aspects of their request with them as this information is commercially sensitive. The Company requests that the trading halt end on the earlier of the commencement of normal trading on Tuesday, 15 September 2015 or when the anticipated announcement referred to above is released to the market. The Company is not aware of any reason why the trading halt should not be granted, nor of any other information necessary to inform the market about the trading halt. 102 A further draft request was sent by Mr Smith to Mr Cruickshank later that evening (9.00 pm AWST) and read as follows: REQUEST FOR TRADING HALT - ANTARES ENERGY LIMITED (AZZ) In accordance with ASX Listing Rule 17.1, Antares Energy Limited requests an immediate trading halt pending a request for further information from ASIC and the ASX in relation to the purchase and sale agreements for the Northern Star and Big Star projects. The ASIC and ASX, have requested a copy of the purchase and sale agreement for review and Antares will provide this. They have also requested that the Company disclose the identity of the purchaser to the market. Antares wishes to discuss this request with them as this information is commercially sensitive and its disclosure would, in the Company's view, jeopardise completion of the sale. The Company requests that the trading halt end on the earlier of the commencement of normal trading on Tuesday, 15 September 2015 or when the anticipated announcement referred to above is released to the market. The Company is not aware of any reason why the trading halt should not be granted, nor of any other information necessary to inform the market about the trading halt.

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11 September 2015 - the trading halt, meeting with ASX and the redacted PSAs 103 Before returning to the chronology of communications with the ASX, it is important to note that separately Mr Hanson and Mr Cruickshank were in communication. It is apparent that they spoke on Saturday 5 September 2015 based on the email below (bearing the date 8 September 2015) that Mr Hanson sent to Mr Cruickshank: James when we were talking Saturday, what was the name of the Private Equity Firm [you] were telling me about that wants to get into the Permian Basin. I would like to have a chat with them on Big Star. 104 At 1.04 am AEST on Friday 11 September 2015 (before the trading halt) Mr Cruickshank replied to Mr Hanson as follows: Barry I hope you are well and all is going as planned. I have instructed our lawyers to be prepared for the closing of Northern Star on Monday 21st September 2015 in their offices in Houston in keeping with the executed Northern Star Purchase and Sale Agreement. The below is the document from TPH which was referring to the Private Equity interest in the Permian as highlighted. When I am back in Texas I will speak with you further about the specific firms we have had contact with. From: TPH Energy Research@[redacted] Sent: Tuesday, 01 September, 2015 7:48 PM Subject: Tudor Pickering Holt Energy Thoughts (9-1-15, Tuesday) ENI, GST, MEG-CN, RDC, OPEC, US oil production, Permian, Gasoline demand, PJM auction PERMIAN E&P VISIT TAKEAWAYS … • A&D market remains hot (E&P $462) - Recent deals by FANG, RSPP and WPX underscore the health of the basin's A&D market. Public E&Ps with premium currency could keep buying acreage with equity to extend core inventory. Meanwhile, billions of dollars' worth of private equity capital are targeting the Permian. Finally, conversations with producers indicate foreign money is re-entering the space and backing U.S. mgmt. teams to operate. Yours from London James 105 Returning to communications with ASX, before the commencement of trading the following morning (Friday 11 September 2015) Mr Smith sent the request in final form for a trading halt to Mr Piccini, under cover of an email that also requested a meeting the same day 'to discuss the information required by the ASX and the ASIC, including the [PSAs]'. The final form of the trading halt request was in the following terms: REQUEST FOR TRADING HALT - ANTARES ENERGY LIMITED (AZZ) In accordance with ASX Listing Rule 17.1, Antares Energy Limited requests an immediate trading halt following a request for further information from ASIC and ASX in relation to the purchase and sale agreements for the Northern Star and Big Star projects. ASIC and ASX, have requested a copy of the purchase and sale agreement for review and Antares is pleased to provide this. The Company requests that the trading halt end on the earlier of the commencement of normal trading on Tuesday, 15 September 2015 or when the anticipated announcement referred to above is released to the market. The Company is not aware of any reason why the trading halt should not be granted, nor of any other information necessary to inform the market about the trading halt. 106 It is therefore apparent that amendments were made to the draft trading halt notices prepared by Mr Smith after they had been provided to Mr Cruickshank. 107 At 7.19 am AWST that day the ASX issued a market release (attaching the request for the trading halt) stating that the securities of Antares would be placed in a trading halt until the earlier of the commencement of normal trading on Tuesday 15 September 2015 or an announcement by the company to the market. 108 Mr Smith emailed Mr Cruickshank and the other directors at 8.57 am AWST and informed them that the trading halt was in place and that a meeting was planned at 11.00 am with ASX 'to discuss issues such as why we won't be disclosing the name of the buyer'. 109 Both Ms Sinniah and Mr Rowe gave evidence as to the meeting with Mr Smith of 11 September 2015. Ms Sinniah prepared a file note of the meeting. 110 Mr Rowe described what was said as follows: (a) Mr Rowe provided examples of where the ASX had considered naming a counterparty to a sale transaction was important ('Enviro Mission and Padbury'); (b) Mr Smith said they didn't think they should be required to disclose the name of the purchaser because it was confidential; naming the purchaser would be detrimental; competitors would approach the purchaser and try and gazump Antares by trying to sell their assets at a lower price; (c) Mr Rowe said that both the ASX and ASIC were concerned; ASIC was concerned that the identity of the purchaser be disclosed; identity is important for investors to assess counterparty risk, completion risk and to undertake due diligence; it is a lot of money and investors need to know where it is coming from; that the ASX wanted copies of the PSAs; Mr Rowe wanted to see if there were conditions precedent; (d) Mr Smith said it was a cash deal and not scrip and so identity shouldn't matter; (e) Mr Rowe said it is not enough to assert the name of the purchaser is commercially sensitive and that in his view it was not commercially sensitive; (f) Mr Smith said he would like the opportunity to put a formal submission; that he had the PSAs with him and was happy to tell the ASX the name but would need an assurance it would not be released or passed on to ASIC because ASIC might 'leak it'; (g) Mr Rowe mentioned Guidance Note 8; (h) Mr Rowe said the ASX would be obliged to pass the information on to ASIC; (i) Mr Smith said he would provide redacted copies to the ASX; and (j) Mr Rowe raised the issue of shareholder approval. 111 Ms Sinniah's evidence was to similar effect although she recalled that Mr Smith used language to the effect that disclosure would 'kill the deal' and that Mr Rowe said if Mr Smith wanted to rely on carve outs (which she understood to mean the exceptions) then he would need to explain why. Both Mr Rowe and Ms Sinniah were cross-examined extensively about the meeting and their evidence is referred to further below. 112 At 2.27 pm AWST that day, Mr Smith emailed Mr Cruickshank attaching a draft submission addressing why Antares should not have to disclose the identity of the purchaser. The attachment was described as v2 (which I infer to mean version 2). The covering email read: Draft submission James Rowe at the ASX suggested we write. He said ASIC was adamant the purchaser be named and his bosses at the ASX also insisted on it, but still suggested we make the submission to hopefully make them change their mind. 113 Later that day Mr Smith sent multiple emails to Ms Sinniah and Mr Rowe providing redacted copies of the PSAs. The name and description of the buyer were redacted in each.

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11 September 2015 half yearly report - financial position 114 Also on 11 September 2015 Antares released to the ASX its half yearly report for the half year ended 30 June 2015. It was released to the market at 6.10 pm and Mr Cruickshank's signature was affixed. Relevantly, it contained the following statements: Going Concern The financial report has been prepared on the going concern basis, which contemplates the continuity of normal business activity and the realisation of assets and the settlement of liabilities in the normal course of business. For the half-year ended 30 June 2015, the Group generated a consolidated loss of $18.333 million and incurred operating cash outflows of $3.601 million. As at 30 June 2015 the Group has cash and cash equivalents of $6.998 million, net current liabilities of $16.384 million and net liabilities of $13.065 million. Current liabilities includes convertible notes amounting to $47.188 million at 30 June 2015 with a reset date of 31 October 2015. The Group cash balance at 31 August 2015 was $4.5 million and the market value of the available for sale financial asset was $17.2 million representing a reduction in the two current assets of $11.9 million from 30 June 2015. Should the convertible noteholders elect to redeem their notes the Group does not currently have sufficient cash reserves to fund the redemption and continue as a going concern. Notwithstanding the above the Directors consider it appropriate to prepare the financial statements on a going concern basis after having regard to the following pertinent matter. It is the opinion of the directors that either: 1) the notes will, once again, be rolled over and therefore the cash required to redeem the notes will not be required, or 2) the announced sale of Northern Star and Big Star assets (refer note 10) will provide the cash required to redeem the notes via either the closure of one of these sales prior to 31 October 2015 or, alternatively, the Group being able to secure short term financing to repay the notes in advance of one of the announced asset sales settling. Should the directors not be able to achieve the matters set out above, there is significant uncertainty as to whether the Group will be able to continue as a going concern unless alternative working capital to repay the convertible notes can be secured. … Notes to the financial statements Available for sale financial assets … AFS financial assets comprise 4.3 million equity securities in Breitburn Energy Partners LP (NASDAQ:BBEP) received as part of the sale of the Company's Southern Star assets. On acquisition the securities were valued at $90.645 million. On 31 December 2014 an impairment of $53.594 million was made to the value of the securities to reflect their fair value based on the current quoted market price of Breitburn securities. In June 2015, a further impairment of $12.472 million was made to the value of these securities. The impairment was made as the Group believes the decline in fair value of 72% was significant. … Events after balance sheet data The share price of Breitburn Energy Partners LP has fallen approximately 40% from 30 June 2015 to 31 August 2015. In AUD this represents a reduction in its carrying value from 30 June 2015 of $26.651 million to $17.263 million. On 7 September 2015, the Company announced the execution of two independent Purchase and Sale Agreements for the sale of Northern Star in the amount of US$148,788,560 and Big Star in the amount US$105,069,420. The closing of the two independent Purchase and Sale Agreements with the same Private Equity purchaser will be on or before 30th November 2015 and is subject to the usual commercial closing conditions and adjustments. 115 The audit opinion provided by Ernst & Young in respect of the half yearly accounts contained an 'emphasis of matter paragraph' in the following terms: Without qualifying our conclusion, we draw attention to Note 1 [Going concern] in the financial report. The matters set forth in Note 1 indicate the existence of a material uncertainty that may cast significant doubt about the consolidated entity's ability to continue as a going concern, and therefore, the consolidated entity may be unable to realise its assets and discharge its liabilities in the normal course of business.

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11-14 September 2015 - Antares' submission to ASX 116 Meanwhile work continued on the submission to the ASX. Another version of the submission (v4) was emailed by Mr Smith to Mr Cruickshank at 10.57 am AWST on 11 September 2015. Mr Cruickshank replied to Mr Smith on the morning of Sunday 13 September 2015 at 9.32 am AWST, stating: 1. Has this submission been sent to the ASX? 2. If not, I would welcome the opportunity to discuss it with you further. 3. I sent you another email you can add as another addition if you wish. 117 Mr Smith replied at 10.05 am AWST that day: No not yet, I was waiting to hear from you on Friday, assumed you would discuss this weekend. I incorporated the latest email in this latest version 118 It appears that further versions of the submission were emailed by Mr Smith to Mr Cruickshank (and Mr Clohessy) that day, as the attachment to the emails was variously described as v5, v6, v7 and v8. 119 The final form submission was provided by Mr Smith to Mr Rowe at around 11.33 pm AWST on Sunday 13 September 2015. Mr Smith also emailed a copy of the final form submission to Mr Cruickshank and the other Antares directors. 120 The submission read: ANTARES ENERGY LIMITED (AZZ) - SALE OF NORTHERN STAR & BIG STAR Thank you for your time on Friday 11 September with Anjuli Sinniah and Mauro Piccini to discuss the disclosure requirements for the sale and purchase of Northern Star & Big Star. Antares was advised on Thursday 10 September by Anjuli Sinniah and Mauro Piccini, and by you on Friday 11 September that ASIC has requested the identity of the Purchaser be announced to the market. To disclose the identity of the Purchaser will be detrimental to Antares' shareholders, noteholders and other stakeholders for the following reasons: 1. Disclosure of the Purchaser's identity will jeopardise completion of the agreement; 2. As this transaction was worth, at the time of announcement, 15 times the market capitalisation of the Company (~USD 250,000,000) we do not consider it reasonable to jeopardise a transaction of this magnitude merely to advise the market of the name of the Purchaser for no additional benefit; 3. Given the transaction is cash only, we believe the identity of the Purchaser is irrelevant; 4. Disclosure of the Purchaser will enable other sellers and other intermediaries, to make contact with the Purchaser with a view to the Purchaser undertaking a transaction with them instead of Antares - this has the potential for the Antares deal to be adversely affected and / or terminated and dramatically changes the risk profile of the deal. Chairman James Cruickshank has already fielded >50 calls from other companies and intermediaries trying to find out the identity of the buyer so as to be part of the transaction or to pursue the purchaser to complete an alternative transaction (see Appendix 1 for examples); 5. As the Purchaser is not a listed ASX Company, there are no restrictions on their disclosure to other parties on the status of the transaction. There is the possibility that shareholders, noteholders and stakeholders could contact the Purchaser directly, and gain access to information which has not been made available to the market. Information may then be made public (through websites such as Hot Copper), and not through the ASX. Antares has a long established history of information remaining confidential and the market being kept fully informed. If all participants in the market have access to the purchaser, Antares will no longer be able to ensure information is reported correctly or completely; 6. As the development and disposal of oil and gas projects is the main undertaking of Antares, we would find it difficult to conduct similar transactions in the future if potential buyers were of the view that Antares could not keep details of a transaction confidential until it had been settled; 7. Given that Antares operates in a market where private companies are a significant purchaser of these types of assets, our ability to require disclosure from them is severely limited as they do not have continuous disclosure requirements. Additionally, this places Antares at a significant disadvantage to our competitors who are not subject to the same continuous disclosure requirements as Antares. Antares believes the information requested by ASIC is an exception to Listing Rule 3.1 under Listing Rule 3.1A as: • The transaction has not been finalised and therefore the information concerns an incomplete proposal; • The information is confidential; and • A reasonable person would not expect the information to be disclosed (for the reasons outlined above). Guidance Note 8 supports this under section 3 - The policy objective of the continuous disclosure regime, which states: Listing Rule 3.1A is the balancing factor here. It seeks to avoid the premature disclosure of information initially by excluding from the requirement for immediate disclosure in Listing Rule 3.1 confidential information that is not yet ripe for disclosure (eg, because it concerns an incomplete proposal or negotiation or is insufficiently definite to warrant disclosure) and then only requiring it to be disclosed if and when it has ripened to an appropriate degree (eg, because the relevant proposal or negotiation has been completed or the matter has become sufficiently definite to warrant disclosure) or it has ceased to be confidential (which it has not). Additionally, Guidance Note 8 states - Listing Rules 3.1, 3.1A and 3.1B form an integrated set of rules intended to strike an appropriate balance between the interests of the market in receiving information that will affect the price or value of, or which is needed to correct or prevent a false market in, an entity's securities at the earliest reasonable time, and the interests of the entity in not having to disclose information prematurely or where it would clearly be inappropriate to do so. Antares is of the very strong view that disclosure of the identity of the Purchaser would be inappropriate and jeopardise our ability to complete this transaction. Antares believes it is the best interest of all our stakeholders not to take any action which will jeopardise the potential for these two transactions to be completed. (original emphasis) 121 An appendix was attached to the submission that contained three references to contact from third parties: an email said to reflect an inquiry from 'Chollapetro' as to whether it could 'tag along on North Star'; a paragraph written about an inquiry from Royal Bank of Canada wanting to know the name of the purchaser to see if it might be interested in another proposal; and an email from Macquarie Capital (USA) Inc asking for the name of the private equity purchaser. 122 On Monday 14 September 2015 and after the ASX's receipt of the submission, Mr Smith participated in a telephone conversation with Ms Elizabeth Harris of the ASX (in Mr Rowe's absence due to ill-health), Ms Sinniah and Mr Piccini. 123 Mr Smith relayed the nature of the telephone call in an email to Mr Cruickshank (and the Board members) that read as follows and attached a draft release about suspension: I received a phone call from the ASX at 3:15pm today. ASX was represented by Mauro Piccini Anjuli Sinniah and Elizabeth Harris Anjuli advised me that the Company must disclose the name of the Purchaser pre-market tomorrow to lift the Trading Halt. Failure to disclose the name of the Purchaser would result in suspension from trading and ASIC would be advised that we are not complying with the Listing Rules. I asked why the ASX was adopting this approach and was told that it was a material transaction, being the disposal of our main undertaking, and the market needed to be informed in order to be able to make informed decisions about this. Attached is a draft announcement which the Board may consider lodging. I do not know whether the ASX would allow this to be lodged though. 124 Ms Sinniah confirmed the ASX's position in an email to Mr Smith following the telephone call: 1. We note AZZ was placed into a trading halt on Friday 11 September 2015 due to come out on Tuesday 15 September 2015. 2. I refer to our telephone conversation with Elizabeth Harris and Mauro Piccini earlier this afternoon. 3. If AZZ is unwilling to disclose the identity of the Purchaser by pre-market open tomorrow Tuesday 15 September 2015, ASX will impose a suspension pursuant to listing rule 17.3 which will continue until AZZ discloses the Purchaser's identity. Please note that AZZ is prevented from requesting a voluntary suspension of trading in this instance. 4. Kindly confirm receipt of this email. 125 On Monday 14 September 2015 at 10.40 pm AWST Mr Smith sent an email to Mr Cruickshank and Mr Clohessy with the subject line 'Additional information for consideration'. Mr Smith referred to the requirement of shareholder approval and anticipated that the ASX would require the name of the purchaser to be published in any notice of meeting. He provided commentary on 'the guidance note on material transactions and shareholder approval'. He wrote: In light of the stance taken by the ASX it would seem that they will require the name of the Purchaser to be included in the notice of meeting and not allow it to be sent to shareholders until it complies. Failure to comply can lead to the ASX advising ASIC that the Company is in breach of the Listing Rules and ASIC can determine if it wishes to take criminal or other regulatory action in relation to the breach. 126 Subsequently, at about midnight AWST Mr Smith emailed to Mr Cruickshank and the other directors a revised ASX announcement about the suspension that he had just lodged with the ASX. The announcement largely repeated the matters set out in the submission Antares had provided to the ASX.

[23]

15 September 2015 - suspension of trading 127 On 15 September 2015 Mr Rowe informed Mr Smith that the ASX would suspend Antares securities from quotation subject to compliance with its disclosure obligations. The ASX then proceeded to implement the suspension (at about 11.58 am AEST) and issued a market release in the following form: MARKET RELEASE 15 September 2015 ANTARES ENERGY LIMITED SUSPENSION FROM OFFICIAL QUOTATION The securities of Antares Energy Limited (the 'Company') will be suspended from quotation immediately by ASX pursuant to listing rule 17.3 on the following basis: 1. The Company has indicated that it is unwilling to comply with its continuous disclosure obligations under listing rule 3.1 by providing the market with the identity of the purchaser for the Northern Star and Big Star projects. The disposal is a material transaction being effected under an executed Purchase and Sale Agreement. Accordingly, none of the carve-outs from immediate disclosure in listing rule 3.1A apply and all material information concerning the disposal is required to be disclosed to the market immediately under listing rule 3.1. 2. The failure by the Company to disclose the identity of the purchaser is contrary to ASX Guidance Note 8 Continuous Disclosure - Listing Rules 3.1 - 3.1A, section 4.15 of which provides guidelines on the contents of announcements of material contracts under listing rule 3.1, including naming the parties to the contract. 3. In addition, the Company is required to obtain shareholder approval for the disposal of its main undertaking pursuant to listing rule 11.2, as a pre-condition to completion of the disposal. It is inconceivable to ASX that the notice of meeting seeking shareholder approval under listing rule 11.2 would not include the identity of the purchaser. Accordingly, that information will be released to the market in any event ahead of the completion of the disposal. 4. In the circumstances, ASX cannot see any basis on which information about the identity of the purchaser for the Northern Star and Big Star projects should not be disclosed to the market immediately. 5. ASX has confirmed with ASIC that the Company's securities should remain suspended until such time as the Company demonstrates compliance with the listing rules. 128 Some 10 minutes later the Antares ASX announcement about the suspension was released to the market.

[24]

Subsequent events 129 On 5 November 2015 Mr Smith emailed Ms Sinniah a draft notice of general meeting for Antares in which it was proposed to seek shareholder approval for the disposal of both or either of the Northern Star and Big Star Assets. Relevantly, the draft notice referred to Wade Energy, and so disclosed to the ASX the identity of the purchaser for the first time. 130 On 10 November 2015 Ms Sinniah emailed Mr Smith attaching a letter about the proposed notice of general meeting. Mr Rowe's evidence was that in contrast to the position with announcements, the ASX approves notices of general meetings for release. The letter was written by him in conjunction with Mr Kevin Lewis, the chief compliance officer. The ASX requested specific information be provided to shareholders, including not only the name of the purchaser but the identity of the owners, directors and senior management, the financial standing of Wade Energy, a description of due diligence inquiries that had been undertaken, and details of the calculation of the closing adjustments referred to in the notice and when the entity became aware of the calculations. 131 According to Mr Rowe, the notice of general meeting was not released. 132 On 1 December 2015 Antares released an announcement to the market disclosing that completion under the PSAs did not occur on 30 November 2015 and that Antares had received a request for an extension. The release included a statement that the Board of Directors was negotiating amendments. 133 On 4 December 2015 Mr Smith lodged an update announcement with the ASX and sent it by email to Ms Sinniah (December 2015 Update). It stated: PURCHASE AND SALE AGREEMENTS NORTHERN STAR & BIG STAR UPDATE Antares Energy Limited (ASX:AZZ) advises that further to its announcement of 1 December 2015, Antares has executed two independent Amended Purchase and Sale Agreements with Wade Energy Corp (Purchaser), a US based private equity purchaser, for the sale of its Northern Star project for USD 148,788,560 and its Big Star project for USD 105,069,420. The Amended Purchase and Sale Agreements replace the Purchase and Sale Agreements previously entered into between Antares and the Purchaser. The closing date for the sale of the Northern Star and Big Star projects has been extended under the Amended Purchase and Sale Agreements to occur on or before 15 January 2016 (Closing Date). The closing of the sale of the Northern Star and Big Star projects is subject to inherent risks and uncertainties, some of which are beyond Antares' control. These risks and uncertainties include contractual risks associated with the Purchaser defaulting on its obligations under the Amended Purchase and Sale Agreements and the credit risk associated with the Purchaser and its private equity financiers. As the Purchaser is a private equity purchaser, there is limited public information relating to the Purchaser, its finances and operations. Antares has been provided with limited information relating to the finances of the Purchaser and its private equity financiers but is continuing to engage with the Purchaser. Similar to other transactions of this nature, there can be no assurance or guarantee that closing will occur. Under the Amended Purchase and Sale Agreements, Antares has the option to terminate the Amended Purchase and Sale Agreements at any time prior to the Closing Date by notice to the Purchaser. The Purchaser does not have any right to terminate the Amended Purchase and Sale Agreements and there are no conditions precedent to closing. The aggregate gross pretax proceeds from the sale of the Northern Star and Big Star projects are expected to be USD 253,857,980. This amount is subject to closing adjustments, estimated taxation and frictional costs of approximately USD 70,000,000. Antares will convene a shareholder meeting to seek shareholder approval for the sale of the Northern Star and Big Star projects in accordance with the ASX Listing Rules, to be announced in due course. 134 Mr Cruickshank's contact details appear at the bottom of the December 2015 Update. 135 Mr Rowe sent an email to Mr Smith shortly after, referring to the December 2015 Update and asking whether the announcement included all the material terms of the amended purchase and sale agreements. Ms Sinniah also sent an email to Mr Smith, copied to Mr Rowe, seeking copies of the agreements referred to in the December 2015 Update. 136 It can be inferred that Mr Smith then contacted Mr Cruickshank, because Mr Smith took a day to respond, a delay for which Mr Smith apologised in an email to Ms Sinniah and Mr Rowe, attributing it to the fact that 'the Chairman is in a different time zone'. Mr Smith provided by way of attachments to the email both amended agreements (signed by Mr Cruickshank) plus a revised version of the December 2015 Update. The revised version included certain (inconsequential) amendments. According to Mr Rowe, the revised December 2015 Update was not released to the market. 137 On 7 March 2016 Antares announced to the market a noteholder meeting. The purpose of the proposed meeting was to seek a resolution that the reset dates for the convertible notes be extended from a previously extended date of 31 March 2016 to 31 March 2017 as the sale of the Northern Star and Big Star Assets had not completed, and Antares was not in a position to satisfy redemption notices from cash reserves. This notice of noteholder meeting identified to the market for the first time that Wade Energy was the intended purchaser under the amended PSAs. 138 It was not in issue that the transactions by way of the PSAs with Wade Energy did not complete. Senior counsel for Mr Cruickshank stated as much during cross-examination.

[31]

The escalation to ASX Sydney on 11 September 2015 and Antares' submission 155 It was suggested to Mr Rowe that he must have had doubts as to the ASX's requirement that the identity of the purchaser be disclosed: it was contended that otherwise there was no need for Mr Rowe to 'escalate' the issue to Sydney after the meeting of 11 September 2015. 156 Mr Rowe denied that he had such doubts. 157 Mr Rowe explained that at the time of the meeting of 11 September 2015 he intended to refer the circumstances with Antares to the chief compliance officer, Mr Lewis, who was based in Sydney. 158 Mr Rowe explained that there was one compliance team across Australia and that he spoke to his equivalents in other states or the people to whom he reported sometimes many times a day. He explained that sometimes he raised matters for information purposes or where he was interested in an interpretation of ASX policy. Sometimes they were raised as matter of prudence to ascertain how issues were being dealt with elsewhere so that there might be consistency in the ASX's approach. Mr Rowe explained, however, that there were some circumstances where it was standard practice to escalate a matter to Sydney, and those included where the outcome of a decision in Perth was that there was going to be a suspension of trading; a show cause letter or a report to ASIC; or where based on the response to previous announcements it was anticipated that there might be a complaint from shareholders or other directors about a proposed announcement. 159 Mr Rowe's evidence was that he had no doubt that Antares was obliged to disclose the name of the purchaser under the PSAs to the market. He understood that to be the ASX's policy. He chose to escalate the matter to Sydney because the ASX was going to suspend trading in Antares shares. Suspension was one of the circumstances where he always referred a matter to Sydney. 160 Mr Rowe was then asked in cross-examination why he gave Mr Smith the opportunity to provide a submission to the ASX if there was no question that Mr Rowe's position as to disclosure of the purchaser's identity was correct. Mr Rowe explained that the ASX was about to suspend the company, and he considered Mr Smith was entitled to put his contrary view as to disclosure and was entitled to have that view considered. On that basis Mr Rowe considered it appropriate to put the submission to the chief compliance officer and offered to Mr Smith that he would do so. 161 Mr Rowe recalled that he was involved in discussions from 9 September 2015 (but he could not recall discussions before that) about the need to name the purchaser. He did not wish to put words in Mr Smith's mouth and thought it appropriate that Mr Smith should prepare the submission. Mr Rowe said he pointed out to Mr Smith things that needed to be addressed in the submission, including Guidance Note 8.

[35]

Mr Cruickshank's lay witness 170 Mr Clohessy provided an affidavit. It was general in nature and was the subject of notification of extensive objections that went beyond questioning relevance. Mr Cruickshank sought to rely on detailed written submissions filed on the morning of the fifth (and final) day of trial addressing the objections to Mr Clohessy's evidence. I heard further oral submissions from senior counsel for Mr Cruickshank and it was agreed that the objections could be dealt with after the hearing and after ASIC had the opportunity to file written submissions in reply (which it did). I made rulings on the objections and provided them to the parties prior to these reasons being prepared and granted the parties liberty to apply (Evidence Rulings). For completeness, the Evidence Rulings are attached as Attachment A to these reasons (and there is some duplication with what is said below). 171 Mr Clohessy's affidavit evidence may be addressed in three parts. 172 First, Mr Clohessy deposed to the role of various persons in relation to Antares. He explained that Mr Cruickshank was based in the USA and was primarily responsible for the corporate functions of Antares. He stated that the primary input for the preparation of ASX announcements (including those that related to the purchase and or sale of assets and corporate funding via debt, rights issues, placements and convertible notes) came from Mr Cruickshank and/or Mr Shoemaker. Typically Mr Cruickshank drafted the corporate announcements and Mr Shoemaker drafted content associated with exploration and drilling. He stated that it was general practice for announcements to be circulated to Board members prior to release to the ASX. He does not recall whether he saw the First PSA Announcement before or after it was made, and states that it was not an announcement into which he would normally have input. 173 Mr Clohessy stated that Mr Smith was based in Australia and was primarily responsible for 'dealing with the [ASX] and other related compliance matters'. 174 Mr Clohessy stated that he was invited to join the Board of Directors in 2009. He said: I understood my role as a non-executive director to include providing input, based on my experience, into the negotiations of commercial transactions and other functions requiring independence, such as chairing the audit and nomination committees. When required I also spent time liaising with shareholders on behalf of Antares in relation to gathering proxies for the annual and extraordinary meetings. 175 Mr Clohessy stated that Board meetings of Antares usually consisted of conference or Skype calls and group emails. 176 He provided a general overview as to Board consultation: The board was consulted in relation to matters of significance, including both general and detailed discussions about the purchase and sale of assets, potential and existing joint ventures, corporate funding and exploration and drilling programs. Antares directors were involved in decisions to sell assets and the progress of any sale negotiations. It was common for directors of Antares to provide input into decisions and negotiations. For example, I would provide insights from my experience negotiating transactions in other industries and Mr Shoemaker would make comments from his technical and operational viewpoint. 177 Mr Clohessy's evidence on these matters may be accepted. He has personal knowledge of the manner in which the Board of Antares operated. 178 Second, Mr Clohessy made a number of statements that are said by Mr Cruickshank to be relevant to the issue of whether there was an express or implied confidentiality agreement as to disclosing the identity of the purchaser of the Antares assets. 179 Mr Clohessy referred to transactions in the Permian Basin generally. He said that during his time as a director, Antares was involved in 'various negotiation and transactions concerning its interest in the Permian Basin'. He was not involved in them personally. He stated that Mr Cruickshank and Mr Shoemaker led negotiations and then reported progress back to the Board. He stated that Antares dealt with 'a number of different entities and individuals who were active in the Texas oil and gas market'. He stated that he 'became aware' of Mr Hanson in 2014 and that at that time Antares was dealing with a number of other entities who were interested in purchasing Antares' assets. 180 Mr Clohessy stated that 'these transactions always included a requirement for confidentiality'. 181 He said that from Antares' position in dealing with many private buyers and sellers who did not have similar disclosure requirements, 'confidentiality was also paramount'. 182 He said that he 'understood' that if confidentiality was lost, 'then so too might be the transaction itself' (referring generally to transactions involving Antares). 183 Mr Clohessy said that 'It was common for individuals or companies who were experienced in finding attractive assets to then present those assets to private backers for funding …'. 184 As to the particular transactions that culminated in the PSAs, Mr Clohessy stated: Although I cannot recall the precise details of our conversations, during the negotiation period Mr Cruickshank and I discussed by telephone and email the progress of negotiations with Mr Hanson. I understood that Mr Hanson was backed by private interests and was proposing to purchase, through Wade Energy, Big Star and Northern Star for around $250 million. I understood that Mr Hanson had required that his and Wade Energy's identity remain confidential. 185 He continued, 'In my mind, it was not necessary in September 2015 to disclose Wade Energy's name because Antares had not done so in similar transactions in the past and the confidentiality regime was such that the deal could be in jeopardy'. He said 'Antares was concerned about it being known that Antares' assets were the subject of a sale to a particular purchaser to avoid owners of neighbouring acreage offering their assets to the same purchaser'. He said 'In my mind, it was common procedure for the purchaser to not be named in these circumstances and it did not make any commercial sense to do so'. 186 It is necessary to assess carefully the limits of the evidence given by Mr Clohessy. Mr Clohessy's evidence appears to be founded on what he was told by Mr Cruickshank and Mr Shoemaker, as he was not personally involved in the negotiations. There is no specific evidence as to what in particular he was told about transactions generally in the Permian Basin involving Antares. Mr Clohessy states at a general level that 'These transactions always included a requirement for confidentiality'. As to the PSAs and negotiations between Antares and Mr Hanson, Mr Clohessy says he 'understood' that Mr Hanson had required that his and Wade Energy's identities remain confidential. He does not state the source of his understanding but viewing his evidence generously it can be assumed that he received information by telephone from Mr Cruickshank. It is by no means clear whether Mr Clohessy was referring to an alleged obligation that subsisted during the negotiation period or whether he intended to also refer to the period after execution of the PSAs. 187 In his affidavit Mr Clohessy assumes the existence of a 'confidentiality regime'. Mr Clohessy then concludes in the context of non-disclosure of the purchaser to the ASX that 'In my mind, it was common procedure for a purchaser not to be named …'. 188 Therefore, based on the evidence, Mr Clohessy has formed an opinion as to a usual or common confidentiality requirement or 'regime' based on what he has been told by others. There is no evidence of his personal involvement in negotiations to procure any such term. Mr Clohessy does not descend into any detail that might suggest such personal involvement. Mr Clohessy seeks to draw an inference from what he has been told by others about parties requiring confidentiality as to purchaser identity. 189 Mr Cruickshank sought to rely on Mr Clohessy's opinion evidence to prove the fact of a common requirement of confidentiality of the identity of a purchaser. Having regard to s 76 of the Evidence Act, Mr Cruickshank sought to rely on s 79 (specialised knowledge) in order to do so. I determined that the evidence is not admissible for that purpose. 190 It can be accepted that Mr Clohessy has experience as a non-executive company director of Antares. He has other experience described in his affidavit as a director of companies and working in the property and commercial property finance industries. I do not, however, accept that Mr Clohessy's evidence is of the nature of expert evidence admissible under s 79 of the Evidence Act. 191 The negotiations to which Mr Clohessy refers were conducted by others. There is no evidence of any particular training, study or experience on Mr Clohessy's part pertaining to whether the identity of purchasers is generally kept confidential in transactions involving assets in the Permian Basin or parties such as those in this matter, or pertaining to the scope or terms of such confidentiality requirements. The affidavit does not establish that his opinion is based on any specialised knowledge that he holds. I do not consider Mr Clohessy's general experience set out in his affidavit as a director of companies or his work in property and commercial property finance industries indicates experience of a sufficiently specialised nature to establish that he has expertise as to the types of contractual terms that might be commonly implied in agreements such as the PSAs. Nor does he disclose personal knowledge or experience where there were express contractual terms requiring that the confidentiality of a purchaser be maintained and in what circumstances. 192 Although Mr Clohessy refers to information being exchanged at Board meetings, he does not mention particular information about confidentiality requirements or descend into any detail of the information that may have been provided. The negotiations from which his asserted understanding of common usage and practice was derived were conducted by others. There is in his affidavit a general reference to a specific example of a 'confidential bid' but the evidence is too general to be of assistance in establishing the foundation for any relevant expertise. The terms and extent of any confidentiality requirement (including as to any permitted disclosure) are not described. 193 There was no expression by Mr Clohessy of any awareness of or attempt to comply with the Harmonised Expert Witness Code of Conduct or Federal Court Practice Note GPN-EXPT. Mr Clohessy's affidavit was included without comment in that part of the Court Book that comprised the lay evidence of the second defendant. There was nothing otherwise to suggest it was being relied upon as expert evidence under s 79. Mr Cruickshank had the opportunity to provide expert evidence and did so, by the tender of a report of Mr Looper that was identified as and filed as an expert report. 194 Having regard to all of those matters, I do not consider Mr Clohessy has the relevant specialised expertise as to confidentiality requirements and terms that might be commonly implied in agreements such as the PSAs such that his opinion evidence is admissible under s 79. Further, I do not consider the generalised nature of his evidence is of assistance in establishing the foundation for any relevant expertise. In any event, even assuming Mr Clohessy to be an expert, his opinion evidence is not evidence that I would consider is of any real probative weight having regard to the lack of independence of Mr Clohessy and having regard to the level of generality of the evidence. 195 As indicated in the Evidence Rulings, I determined that the evidence is admissible but limited to evidence as to Mr Clohessy's state of mind. 196 Similarly, as to an alleged express confidentiality term, Mr Clohessy's understanding that Mr Hanson required that Wade Energy's identity remain confidential is based only on what he says he has been told by Mr Cruickshank. The evidence is relevant insofar as Mr Clohessy's state of mind is relevant, but does not establish the existence of the alleged underlying express oral agreement. 197 Third, aspects of Mr Clohessy's evidence relate to the extent to which Antares had information about Wade Energy's financial capacity to complete the transactions. Mr Clohessy's evidence was that he did not know the sources of Mr Hanson's funding. 198 Mr Clohessy stated in his affidavit that he 'understood from discussions with Mr Cruickshank that Mr Hanson had experience in finding assets and backers to fund the purchase of those assets'. He stated that he 'was satisfied' with Mr Cruickshank's assessment. He 'understood' that at the time of the negotiations Mr Hanson was backed by private interests. Mr Clohessy also referred to the date of suspension of trading in shares (15 September 2015) and stated that: Over the following weeks, Mr Cruickshank continued to liaise with Mr Hanson and was providing him with information necessary to complete the transaction. In my discussions with Mr Cruickshank he advised me that Mr Hanson was taking all the appropriate actions that he would expect of a purchaser who was heading towards closing of the transaction. … … but [I] understood various sources of private equity backing were available to Mr Hanson and their identity would not necessarily be disclosed to us. 199 The particular discussions to which Mr Clohessy refers seem to have occurred after the Relevant Period and do not inform the question of knowledge prior to or during the Relevant Period. 200 In short, the information to which Mr Clohessy refers has been given to him by others and the evidence is hearsay and second-hand hearsay. It is not admissible for the purpose of proof of the various facts asserted about Mr Hanson. As noted in the Evidence Rulings, I accept ASIC's submission that the evidence cannot rise higher than establishing certain communications to Mr Clohessy and as evidence relevant to the state of mind of Mr Clohessy. It is not evidence that establishes the objective fact of any verification or due diligence activities. 201 Mr Cruickshank submits that the evidence that I have referred to at [198] above is probative evidence of the state of mind of Mr Cruickshank. I have not accepted that submission. It is evidence of what Mr Cruickshank told Mr Clohessy. 202 Mr Cruickshank submits that it was open to ASIC to cross-examine Mr Clohessy. That may be so but would not assist in ascertaining or testing Mr Cruickshank's direct knowledge. 203 Finally, Mr Clohessy referred to the PSA Announcements and stated that: I believed at the time of the announcement, however, based on my experience and previous Antares transactions, that it was a rational statement and contained all the necessary information about the transaction available to Antares at that time. 204 At most that comprises evidence as to Mr Clohessy's state of mind and opinion as to disclosure by Antares and, even if such opinion is attributed to Antares, it does not address with any specificity the continuous disclosure allegations or exceptions that Antares might have sought to rely upon. 205 Mr Cruickshank also submits that Mr Clohessy's knowledge generally is to be attributed to Antares. That submission in itself may be accepted, but the evidence of his knowledge, limited in the manner I have described at [178]-[204] above, is not by any such attribution elevated in quality or probative value. Nor does aggregation of his state of mind evidence about the alleged confidentiality requirement or the testing of Wade Energy's capacity to perform its obligations with evidence as to the knowledge of Mr Cruickshank, and attribution of such aggregated knowledge to Antares, operate to elevate the quality or value of Mr Clohessy's evidence in this case. Whilst some of the evidence records what Mr Cruickshank apparently told Mr Clohessy and Mr Smith, I have not found such record to be probative or persuasive proof of the knowledge of Mr Cruickshank of, or of the underlying fact of, a confidentiality agreement or any due diligence process that was undertaken (see, for example [201] above and [285]-[287], [294]-[297], [309]-[310] and [315] below).

[40]

ASX did not 'approve' the PSA Clarification Announcement as meeting all concerns 210 Senior counsel for Mr Cruickshank sought to paint a picture that the ASX, having seen the draft PSA Clarification Announcement, was content that it addressed any problem that the ASX may have had with the PSA Announcements. The evidence does not support this contention. 211 Mr Smith told Ms Sinniah and Mr Piccini during the phone call of 9 September 2015 that Antares would not disclose the name of the purchaser. Ms Sinniah's evidence confirmed as much. Mr Smith told Mr Cruickshank in his email of the same day that he had told the ASX 'we would not be disclosing this'. Therefore, it is not surprising that the draft PSA Clarification Announcement provided by Mr Smith to Mr Piccini on 10 September 2015 did not disclose the name of the purchaser. Nor is it surprising that Mr Piccini asked for the draft PSA Clarification Announcement to be released by Antares. The notice provided some additional information to the market, albeit that it did not disclose the name of the purchaser. There was a time imperative in updating the market with relevant information and Mr Smith had already said (in effect) that Antares would not disclose the name. 212 It is also apparent from subsequent communications on the same day that the question of disclosing the identity of the purchaser remained a live issue between the parties, even after the PSA Clarification Announcement was released to the market. 213 There was a further telephone conversation between Mr Smith, Ms Sinniah and Mr Piccini in which the issue of naming the purchaser was again raised. There was no evidence to suggest that Mr Smith asserted during that call that all issues had been resolved by the PSA Clarification Announcement, an assertion one might have expected would be made if it is contended that Mr Piccini's email was to be understood in that manner. 214 Rather, Ms Sinniah said that the requirement to disclose the name of the purchaser was again raised during the phone call. 215 Further, emails from Mr Smith to Mr Cruickshank of that day record that the ASX wanted copies of the PSAs and to be sure that the purchaser has the capacity to complete; that the ASX 'insisted' on this; that there was a further telephone conversation with the ASX in which it was said that ASIC required the ASX to obtain from Antares the name of the purchaser, and that the ASX reiterated the need for information about the purchaser's capacity to complete. It should also be recalled that the trading halt was requested by Antares later that evening. Mr Smith's email to Mr Cruickshank attaching the draft request for a trading halt referred to Mr Smith proposing a face to face meeting with the ASX to 'discuss the purchaser'. The amendments to the draft trading halt request made between that communication and the final version provided to the ASX suggest that Mr Cruickshank read the covering email and draft and provided instructions to Mr Smith. 216 In those circumstances Mr Piccini's email cannot reasonably be understood as any concession that the ASX considered the disclosure issues that had been raised had all been met by the PSA Clarification Announcement, or that the ASX endorsed the notice as having that effect. Nor, it would appear from the later communications of that day, was it construed as such by Mr Smith. The communications from Mr Smith to Mr Cruickshank confirm that there were disclosure issues that remained live and that both ASIC and the ASX were pursuing information.

[41]

Mr Cruickshank had knowledge of the PSA Clarification Announcement 217 It was initially Mr Cruickshank's case that he had no involvement in the publication of the PSA Clarification Announcement. So much was stated in the Concise Response. However, I infer from the following matters that Mr Cruickshank was kept in the loop by Mr Smith and had knowledge of the draft and the intention to release it to the market. 218 Mr Smith sent Mr Cruickshank and the other directors a draft of the PSA Clarification Announcement expressly 'for review' before it was provided to the ASX. Mr Smith told Ms Sinniah and Mr Piccini during the telephone call that a draft clarification announcement would need to go to the MD. The draft included Mr Cruickshank's name and contact details (and not the name or contact details of any other person). There was no evidence the email to Mr Cruickshank bounced back. The usual email address for Mr Cruickshank was utilised by Mr Smith. According to Mr Clohessy, it was Mr Cruickshank who, with Mr Shoemaker, had the 'primary input for the preparation of … ASX announcements'. 219 Further, the history of communications between Mr Cruickshank and Mr Smith indicates that it was Mr Smith's practice to seek instructions from Mr Cruickshank with respect to his dealings with the ASX. This course is not surprising, having regard to the fact that Mr Smith was not a director of Antares. For example: (a) Mr Cruickshank directed Mr Smith to release the First PSA Announcement; (b) Mr Smith's email to Mr Cruickshank of 8.16 pm AWST on 10 September 2015 refers to their telephone conversation that day and Mr Smith states that he would advise the ASX 'as per your [Mr Cruickshank's] instructions'; (c) the same email sought Mr Cruickshank's feedback on the draft trading halt request ('how's this?' and 'any other information you would like added?'); (d) Mr Smith specifically passed on to Mr Cruickshank the ASX's request for the PSAs (email of 10 September 2015 2.46 pm AWST) before providing them to the ASX in redacted form; (e) Mr Smith provided the submission to the ASX to Mr Cruickshank in draft and said to Mr Cruickshank that before sending it to the ASX he was 'waiting to hear from you'; (f) Mr Smith emailed the draft release about the suspension to Mr Cruickshank and the other Board members on 15 September 2015, stating the Board 'may consider lodging' it; and (g) Mr Smith emailed Mr Cruickshank (and Mr Clohessy) providing 'Additional information for consideration' about shareholder approvals. 220 Against that backdrop I consider it highly improbable that Mr Smith would have provided the PSA Clarification Announcement to the ASX without Mr Cruickshank's prior knowledge. 221 I am satisfied to the requisite standard that Mr Cruickshank was kept informed of matters arising with the ASX by Mr Smith and had knowledge of the draft and the intention to release it to the market. It has not been necessary to resort to the rule in Jones v Dunkel in order to draw that inference.

[42]

ASX was not satisfied that the identity of the purchaser was confidential information 222 Mr Cruickshank submits that the ASX was considering the question of whether disclosure of the name of the purchaser was required up until it responded to Antares' submission on 14 September 2015. That submission is apparently made by way of foundation for a contention that the position as to whether disclosure was required was entirely unclear and a matter on which people might have different and reasonably held views. 223 The submission that the ASX was 'considering' the position obscures the factual scenario. The evidence established the following: (a) the ASX was clear in its view as stated on 9 September 2015 that Antares was obliged to name the purchaser under the PSAs in order to meet its continuous disclosure obligations. It did not move from that position; (b) the ASX 'considered' the issue on an ongoing basis in the sense that it met with Mr Smith and gave Antares the opportunity to air its views and make submissions; and (c) in doing so, it made no concession that its view was wrong and it did not shift at any point from its position that disclosure was required. 224 Mr Rowe was cross-examined extensively on this point. His evidence that he was at all times convinced that the purchaser's name should be disclosed was convincing and I accept it. I have set out his evidence in this regard at [154]-[164] above. Ms Sinniah similarly said that the ASX and ASIC required the purchaser information to be disclosed. 225 Mr Rowe's evidence is also consistent with the intent of the Listing Rules and Guidance Note 8. I do not accept that the wording of Guidance Note 8 introduces a level of ambiguity or choice as to whether or not certain information is to be disclosed. It must be recalled that there may well be circumstances where information does not need to be disclosed: Listing Rule 3.1A expressly provides for this. Further, some of the information listed in cl 4.15 of Guidance Note 8 may be trivial or may not be relevant or material depending on the circumstances of a particular transaction. The drafting of Guidance Note 8 (and recalling it is not a legislative provision) allows for such potential, whilst guiding the reader as to matters to be given attention. It does not modify or ameliorate the obligations under Listing Rule 3.1. Any assessment of disclosure must have regard to the particular commercial terms of the relevant transaction and the obligations of Listing Rule 3.1. It would be contrary to the intent of the Listing Rules (see [51] above) and the legislative scheme if Guidance Note 8 were to be understood in such a way that it diluted the obligations of continuous disclosure. 226 I am satisfied that at all material times the ASX was of the view that the identity of the purchaser in the circumstances of the PSAs needed to be disclosed.

[44]

Principles 230 I acknowledge that some of what follows in [231]-[235] adopts the useful summary of Foster J in Masters v Lombe (Liquidator); In the Matter of Babcock & Brown Limited (In Liq) [2019] FCA 1720 at [270]-[285], citing in particular the Full Court's consideration of construction issues in Grant-Taylor v Babcock & Brown (FC) at [91]-[94]. 231 In order for s 674 of the Corporations Act to be engaged, there must be a requirement in the relevant listing rules (here the ASX Listing Rules) that the entity notify the market operator (here the ASX) of the particular information or event. 232 An ASX listed company satisfies such a requirement because of the disclosure obligations of Chapter 3 of the Listing Rules, particularly Listing Rule 3.1: Grant-Taylor v Babcock & Brown (FC) at [51]. 233 The first requirement of s 674(1) is that there be something constituting 'information', because that is the subject matter upon which the obligation to disclose fixes. 234 The next requirement is that the entity must be shown to have 'had' the relevant information: s 674(2)(b). Listing Rule 3.1 read with Listing Rule 19.12 requires that the entity '[was] … aware of' the information, in the sense that the directors of the entity '[had], or ought reasonably to have, come into possession of [the information] … in the course of the performance of their duties as directors'. These provisions are to be understood as requiring actual or constructive knowledge of the relevant information: Grant-Taylor v Babcock & Brown (FC) at [185]. 235 The next matter is materiality: s 674(2)(c)(ii) and s 677 of the Corporations Act and Listing Rule 3.1 The information in question must be information that a reasonable person would expect, if it were generally available, to have a material effect on the price or value of the entity's shares. By s 677, information is taken to have such material effect if the information would, or would be likely to, influence persons who commonly invest in securities in deciding whether to acquire or dispose of the entity's shares. That is, s 677 is a deeming provision which provides a sufficient foundation for establishing materiality. As made clear by the reference to a 'reasonable person' in s 674(2)(c)(ii), the element of materiality involves an objective inquiry. Although Listing Rule 3.1 in referring to materiality does not use the expression 'commonly invest in securities', the Full Court in Grant-Taylor v Babcock & Brown (FC) held that Listing Rule 3.1 and s 674(2)(ii) were to be given a concordant operation. Therefore, the Listing Rule is to be taken to incorporate that expression. The Full Court said: [95] Listing Rule 3.1 prima facie only requires disclosure if 'a reasonable person would expect [it] to have a material effect on the price or value' of the shares. This looked at the question through an ex ante lens. The Listing Rule does not elaborate further on this concept. In contrast, the Act does. Section 674(2)(c)(ii) provides that it be shown (in order for the statutory disclosure obligation to apply) that the information is such that 'a reasonable person would expect, if it were generally available, to have a material effect on the price or value …'. This mirrors the Listing Rule requirement in terms of a positive element required to be satisfied in order for disclosure to be required. Section 677 elaborates on this concept. Section 677 provides that 'a reasonable person would be taken to expect information to have a material effect … if the information would, or would be likely to, influence persons who commonly invest in securities in deciding whether to acquire or dispose of' the shares. The question arises as to the relationship between the Listing Rule and s 677. It seems to us that s 677 does not narrow the ordinary meaning of the concept in the Listing Rule. It is not expressed as 'if and only if'. Moreover, it does not appear to change the ordinary meaning of the concept. Moreover, reading the Listing Rule 3.1 concept to implicitly embrace the elaboration in s 677 avoids difficulties of discordance between the two. The Listing Rule 3.1 concept should be taken to implicitly embrace the s 677 concept. Such a conclusion is supported by Jubilee Mines NL v Riley [2009] WASCA 62; 40 WAR 299 at [34] and [54] to [62]. Such a conclusion appears also to have been embraced by the publishers of the Listing Rule, who refer to s 677 as part of the explanatory notes to the Listing Rule. [96] What is meant by 'material effect' in s 674(2)(c)(ii)? As stated earlier, s 677 illuminates this concept and also identifies the genus of the class of 'persons who commonly invest in securities'. It refers to the concept of whether 'the information would, or would be likely to, influence [such] persons … in deciding whether to acquire or dispose of' the relevant shares. The concept of 'materiality' in terms of its capacity to influence a person whether to acquire or dispose of shares must refer to information which is non-trivial at least. It is insufficient that the information 'may' or 'might' influence a decision: it is 'would' or 'would be likely' that is required to be shown: TSC Industries Inc v Northway Inc 426 US 438 (1976). Materiality may also then depend upon a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event on the company's affairs (Basic Inc v Levinson 485 US 224 (1988) at 238 and 239; see also TSC v Northway). Finally, the accounting treatment of 'materiality' may not be irrelevant if the information is of a financial nature that ought to be disclosed in the company's accounts. But accounting materiality does have a different, albeit not completely unrelated, focus … 236 In Australian Securities and Investments Commission v Vocation Limited (in liq) [2019] FCA 807 Nicholas J summarised the position: [519] To satisfy the 'materiality' requirement imposed by s 674(2)(c)(ii), the information must be 'non-trivial' and rise beyond information that merely 'might' influence a decision by investors. Determining whether information is material may sometimes involve balancing the probability that a particular event will occur and the potential impact of the event on the company's business. 237 In ASIC v Vocation Nicholas J also considered the respective reasons of Martin CJ and McLure JA in Jubilee Mines NL v Riley [2009] WASCA 62; (2009) 40 WAR 299, noting the decision is authority for the proposition that information that is alleged by a plaintiff to be material may need to be considered in its broader context (that is, having regard to additional information) for the purpose of determining whether it satisfies the relevant statutory test of materiality. It will be necessary to return to Jubilee Mines v Riley. 238 Justice Foster concluded in Masters v Lombe: [284] At all times it must be kept in the forefront of the Court's consideration of the requirement of s 674 that it is first necessary to identify the information that, according to the complainant, should have been disclosed. The Court must develop an hypothetical scenario against which it is required objectively to assess the entity's compliance and the issue of materiality. 239 The relevant test is ex ante, in that it requires a court to assess materiality as at the time it is alleged disclosure should have been made: James Hardie v ASIC at [534]-[537]. 240 Whether information, had it been generally available, would be expected by a reasonable person to have a material effect on the price or value of a company's shares is a matter that is appropriately addressed by expert evidence: James Hardie v ASIC at [228]; ASIC v Vocation at [531]-[549]; Noske v The Queen [2017] WASC 56 at [5]-[15], [16]-[26] (Hall J); and R v Fysh [2012] NSWSC 1266 at [25]-[26], [28]-[31] (McCallum J), not relevantly disturbed on appeal in Fysh v The Queen [2013] NSWCCA 284 at [208], [210]. 241 In Grant-Taylor v Babcock & Brown (FC), the Full Court explained the meaning of 'persons who commonly invest in securities' as used in s 677 when read with s 674. It concluded: [115] We are of the view that the expression 'persons who commonly invest in securities' is a class description. First, the plural 'persons' is used in contradistinction to the singular 'a reasonable person' in s 677. Secondly, to treat this as a class description avoids distinctions dealing with large or small, frequent or infrequent, sophisticated or unsophisticated individual investors. Such idiosyncratic distinctions are made irrelevant if one is looking at a class of investors. There is no reason to confine 'likely to influence persons …' to the sophisticated. The unsophisticated also need protection. Likewise the small investor and likewise the infrequent investor. But not the irrational investor. Thirdly, in the context of s 676, the question is whether the information has been made known to the relevant class, albeit that the class may be narrower than for s 677. We accept that the phrase does not use the express language of 'class', but in using the plural 'persons', the legislature appears to be generalising to a group description. [116] The word 'commonly' in s 677 has been employed to underline that the objective question of materiality posed by ss 674 and 675 by reference to the hypothetical reasonable person in turn has regard to what information would or would be likely to influence a hypothetical class of persons namely 'persons who commonly invest in securities'. 242 Turning to s 674(2)(c)(i) read with s 676(2) and whether information is generally available, the question is whether the information could have been observed, apparently by the public, easily or without difficulty: Grant-Taylor v Babcock & Brown (FC) at [118]-[120]. 243 Finally, s 674 to s 677 are remedial or protective provisions. They should be construed beneficially to the investing public and in a manner which gives the fullest relief that the fair meaning of their language allows: James Hardie v ASIC at [356]; and Grant-Taylor v Babcock & Brown (FC) at [93].

[45]

Pleaded case 244 This matter proceeded by way of ASIC's concise statement (Concise Statement) and Mr Cruickshank's concise responsive statement (Concise Response). It was not suggested by any party that further pleadings or particulars were required in order for their respective cases to be understood. Mr Cruickshank consented to an order that he file and serve a Concise Response. 245 After setting out relevant facts, ASIC's Concise Statement identified the following information that it said was not disclosed: [5] On or about 6 September 2015, Mr Barry Hanson, the CEO of Wade Energy advised Mr Cruickshank that he had not yet received all financing approval necessary to complete the purchase of the Big Star Assets (Incomplete Financing Approval Information). … [14] Each of the First PSA Announcement, the Second PSA Announcement and the PSA Clarification Announcement disclosed that the purchaser of the Northern Star Assets and the Big Star Assets was a private equity firm but none disclosed that Wade Energy was the purchaser of the Northern Star Assets and the Big Star Assets (Purchaser Identity Information). … [17] At no time prior to its suspension from official quotation by the ASX on 15 September 2015 did Antares: a. independently verify or otherwise determine the capacity of Wade Energy to complete either the Northern Star PSA or the Big Star PSA (Absence of Independent Verification Information); or b. disclose to the market any of the Purchaser Identity Information, the Absence of Independent Verification Information or the Incomplete Financing Approval Information. 246 ASIC contends that each of the Purchaser Identity Information, the Absence of Independent Verification Information and the Incomplete Financing Approval Information (to adopt ASIC's defined terms) was not generally available within the meaning of s 674(2) of the Corporations Act at any time during the period 7 September 2015 to 15 September 2015 (Relevant Period). 247 ASIC sets out the following matters as to the materiality of the information: [19] If the Purchaser Identity Information either alone or in combination with the Absence of Independent Verification Information and the Incomplete Financing Approval Information had been generally available in the Relevant Period, it or they would have been likely to influence persons who commonly invest in securities in deciding whether to acquire or dispose of shares in Antares, given: a. the significance of the sale of the Northern Star Assets and the Big Star Assets to the financial position of Antares, in particular its ability to redeem any of the Convertible Notes on the next reset date; b. the quantum of the sale prices for the Northern Star Assets and the Big Star Assets compared with the market capitalisation of Antares; c. the likely absence of recognition of the identity of the purchaser amongst investors and potential investors in Antares; d. the limited information available to investors and potential investors in Antares of the capacity of Wade Energy or Mr Hanson to complete the purchase of the Northern Star Assets and the Big Star Assets; and e. investors and potential investors in Antares would have expected that Antares would have undertaken an independent verification and due diligence of the capacity of Wade Energy or Mr Hanson to complete the purchase of the Northern Star Assets and the Big Star Assets before announcing to the ASX the sale, without qualification, of those assets to Wade Energy. 248 ASIC's case is that contrary to the continuous disclosure obligations, each of Antares and Mr Cruickshank had knowledge of, but failed to notify, the ASX of any of the Purchaser Identity Information, the Absence of Independent Verification Information or the Incomplete Financing Approval Information at any time prior to the suspension of Antares from official quotation by the ASX on 15 September 2015. The information is referred to collectively as the Cumulative Information. It seeks declarations of contraventions in the alternative. That is, it seeks a declaration that Antares contravened s 674(2) of the Corporations Act during the Relevant Period by failing to comply with Listing Rule 3.1 by not notifying the ASX that Wade Energy was the purchaser under the PSAs. Further or in the alternative, it seeks a declaration that Antares contravened s 674(2) of the Corporations Act during the Relevant Period by failing to comply with Listing Rule 3.1 by not notifying the ASX of the Cumulative Information. 249 ASIC pleads in its Concise Statement that Mr Cruickshank was knowingly concerned in the s 674(2) contraventions by Antares and so contravened s 674(2A) of the Corporations Act. 250 ASIC also alleges that Mr Cruickshank failed to discharge his duties to Antares with the requisite degree of care and diligence by causing Antares to fail to comply with its continuous disclosure obligations, and thereby contravened s 180 of the Corporations Act. 251 Before leaving ASIC's Concise Statement, I note that Mr Cruickshank questioned the relevance of the convertible notes to the proceedings (although he accepted in his Concise Response that it was not in dispute that Antares had on issue unsecured convertible notes on 4 September 2015). I accept ASIC's submission that the fact that Antares had a convertible notes reset date pending in October 2015 is a matter of relevance and that it forms part of the context of ASIC's case. That ASIC might refer to the convertible notes was not a matter of surprise: the convertible notes are referred to in [19(a)] of the Concise Statement (at [247] above), and they were expressly described in the Concise Statement as follows: [7] As at 7 September 2015: a. Antares had on issue 23,750,000 unsecured convertible notes (ASX:AZZG) issued pursuant to a Note Trust Deed dated 19 September 2003, as amended on 3 January 2007 and 12 July 2013, with a face value of $47,500,000 (AZZG convertible notes); b. the next reset date for the AZZG convertible notes was 31 October 2015. (original emphasis) 252 The convertible notes were also referred to in Mr Bowers' expert report (in paragraphs additional to two identified paragraphs of Mr Bowers' report that referred to convertible notes but were not read). 253 In his Concise Response, Mr Cruickshank says the following (relevantly) about the transactions with Wade Energy: (a) Antares had a right to develop and exploit hydrocarbon deposits on the Northern Star Assets and Big Star Assets; (b) Antares was approached by Mr Hanson of Wade Energy on 7 August 2015 with a proposal to purchase the Northern Star Assets and the Big Star Assets; (c) Mr Cruickshank exercised reasonable diligence in seeking to determine Wade Energy's ability to settle the transaction through its private equity funding; and (d) it was a term of the PSAs, alternatively, an underlying requirement of Antares prior to Wade Energy's execution of the PSAs, that Wade Energy would not be disclosed as the purchaser of the Northern Star Assets and Big Star Assets until after the PSAs settled. 254 Mr Cruickshank claims that Wade Energy was described as a 'private equity purchaser' in the First and Second PSA Announcements because: (a) Wade Energy's purchase of Big Star and Northern Star relied on private equity finance; (b) Wade Energy was therefore a private equity purchaser; (c) Wade Energy required confidentiality as to the PSAs; (d) had the identity of Wade Energy been disclosed between 7 September [2015] and 14 September [2015], Wade Energy would have withdrawn from the PSAs; and (e) Wade Energy's insistence of confidentiality was consistent with Mr Cruickshank's experience in US private equity transactions and consistent with Antares' practice in the Petrohawk transaction, Chesapeake transaction, BHP transaction and Breitburn transaction. 255 Mr Cruickshank also claims in his Concise Response that: … any reasonable person reading each of the First or Second Announcements would have known that the critical information was not the name of the purchaser, but the fact that the purchaser was supported by private equity. Accordingly, the name of the purchaser would not have been material to persons who commonly invest in securities in terms of their decision to acquire or dispose of shares in Antares. 256 As to the case against Mr Cruickshank, he denies Antares acted in contravention of its disclosure obligations, and he denies he was involved in any such contravention. He says, in the alternative, that if he was involved in such a contravention, s 674(2B) applies because he took all reasonable steps to ensure that Antares complied with its obligations and he believed on reasonable grounds that Antares was complying with its obligations. 257 Mr Cruickshank denies he acted other than with the degree of care and skill of a reasonable director as referred to in s 180(1) of the Corporations Act. In the alternative, he says that s 180(2) applies (business judgment rule).

[46]

The information 258 It is necessary in continuous disclosure cases to identify with some precision the information which the plaintiff alleges the company was aware of and should have disclosed: TPT Patrol Pty Ltd as trustee for Amies Superannuation Fund v Myer Holdings Limited [2019] FCA 1747 at [1121] (Beach J). 259 Mr Cruickshank criticised the manner in which ASIC defined or described the information said to be relevant, contending that the descriptions were too narrow or amounted to a construct, referring to Jubilee Mines v Riley. That decision was relied upon by the defendants in ASIC v Vocation and was considered carefully by the trial judge, and I can do no better than to adopt Nicholas J's summary of the facts: [561] In Jubilee the appellant (Jubilee) was an ASX listed company focused on gold exploration at a number of tenements it acquired in 1993. In 1994, another company (WMC) inadvertently carried out drilling on one of those tenements. WMC later provided the drilling data to Jubilee which was then reviewed by its geologist. The drilling data pointed to the existence of a deposit of low grade nickel. However, in the geologist's opinion, the ore width as suggested by the drilling data was insufficient to sustain an economic mine, and, in his view, the prospect of ever proving an economic deposit of nickel within the tenement was remote. Jubilee's geologist reviewed and discussed the drilling data with the managing director of the company, who decided that the drilling data did not need to be disclosed pursuant to the relevant ASX Listing Rule (r 3A) which was in force at that time because it was not material. The respondent to the appeal (Mr Riley) sued Jubilee for damages some years later after it made an ASX announcement disclosing that WMC had inadvertently drilled on Jubilee's tenement and providing further information that Jubilee had subsequently obtained as to the significance of the drilling data. [562] In upholding Jubilee's appeal from the decision of the Master awarding Mr Riley substantial damages, the Court concluded that the information concerning the nickel deposit obtained from WMC in 1994 was not material for the purposes of s 1001A or s 1001D of the Corporations Law. 260 Chief Justice Martin in Jubilee Mines v Riley said the following about the question of the disclosure of information in the context of s 1001D of the Corporations Law (now s 674(2)(c)(ii) of the Corporations Act): [90] Jubilee can only have been obliged to disclose information which it had or ought to have had. The latter expression cannot be construed as extending to information arising from business decisions which Jubilee had not made - such as the decision to undertake exploratory drilling. Jubilee's obligations of disclosure must be assessed having regard to the totality of relevant information. It follows that if, for whatever reason (including flawed reasons), Jubilee had no current intention of undertaking exploratory drilling on the tenement, and that intention was relevant to the assessment of the extent to which provision of the drill hole data provided by WMC would be likely to influence those who commonly invest in securities in deciding whether or not to buy or sell Jubilee's shares, Jubilee's obligations of disclosure must be assessed in that light. 261 His Honour then referred to the question of materiality and whether a trader would or would likely be influenced in their decision to buy or sell shares by the information allegedly not disclosed, stating: [123] Looking at this issue from the perspective of such a trader, as the master found, the relevance of the WMC drill hole information lay in its revelation of the prospectivity of the tenement. Following the announcement of such data, the prospect of gain for such a trader would lie in the possibility that further exploratory work would prove up the preliminary data, resulting in an increase in the price of the shares, which could then be sold at a profit. On that hypothetical scenario, if the announcement of the drill hole data was accompanied by a statement to the effect that the company had no current intention of undertaking exploratory work, and lacked the financial capacity or the inclination to do so, the hypothetical scenario of gain would appear, to such a trader, to be most unlikely or improbable, at least in the foreseeable future. Accordingly, doing the best one can to stand in the shoes of the hypothetical investor nominated by s 1001D, and taking into account the evidence of Mr Le Page, Dr Rudenno and Mr Riley, I conclude that an announcement by Jubilee of all relevant information pertaining to the WMC drill hole data would not, or would not have been likely to, influence persons who commonly invest in securities in deciding whether or not to buy or sell its shares. It follows that s 1001D did not operate to require Jubilee to disclose any information relating to the data provided by WMC until June 1996, when it made such disclosure. [124] As I have observed above (at [58]), s 1001D is not, theoretically at least, the only means by which it can be concluded that a reasonable person would expect the information, if made available, to have a material effect on the price or value of Jubilee's shares. However, in the circumstances of the present case, once it is concluded that disclosure of all relevant information would not have influenced persons who commonly invest in securities in deciding whether to buy Jubilee's shares, it is impossible to see any other basis upon which it could be concluded that a reasonable person would expect disclosure of that information to have a material effect on the price of Jubilee's shares. 262 Justice of Appeal McLure, writing separately, said: [162] The respondent would narrowly confine the 'information' by taking it out of its broader factual and commercial/corporate context then gauge whether that information has the deemed material effect on the price of the companies securities by reference to the common investor who assesses the information in the context of publicly available information. That in my view is inconsistent with the purpose of the disclosure regime which is a fully informed market. Where share price sensitivity depends upon the company having an expert assessment of core information and business decisions are made based on that expert assessment, the disclosure of only the core information (conveying an imputation that it is, in the company's assessment, likely to have a material effect on the share price) may be misleading. The disclosure regime does not countenance disclosure of incomplete information just because that information alone would influence persons who commonly invest to buy or sell shares. 263 Having considered the respective reasons, Nicholas J concluded in ASIC v Vocation: [566] Properly understood, Jubilee is authority for the proposition that information that is alleged by a plaintiff to be material, may need to be considered in its broader context for the purpose of determining whether it satisfies the relevant statutory test of materiality. For that reason it will often be necessary to consider whether there is additional information beyond what is alleged not to have been disclosed and what impact it would have on the assessment of the information that the plaintiff alleges should have been disclosed. The judgment of the Court of Appeal in James Hardie (referred to above) is authority for the same general proposition. 264 Mr Cruickshank relies on McLure JA's statement at [162] that '… the disclosure of only the core information (conveying an imputation that it is, in the company's assessment, likely to have a material effect on the share price) may be misleading'. 265 However, Mr Cruickshank did not explain what contextual or additional information he said ought to have been taken into account with respect to Antares. It was not put to Mr Bowers that there was additional factual information that he should take into account in assessing the materiality of the identified information. Mr Cruickshank did not identity information that might be said to be wrongly divorced from the consideration of the identified information. He did not evince evidence of any additional information that he asserts ought to have been taken into account or additionally disclosed so as to avoid the disclosure that ASIC alleges should have occurred from being misleading. 266 In that sense there is a stark contrast with the scenario that arose in Jubilee Mines v Riley, where there existed contextual information which qualified the information that it was alleged should have been disclosed. No such particular information is identified here. The context that was available and disclosed was taken into account by Mr Bowers, and this is discussed further below. 267 Mr Cruickshank also contends that the facts and circumstances alleged to give rise to disclosure obligations do not correspond with the assertions being made at the relevant time (presumably by the ASX) as to the disclosure obligations, and that this in some manner tells against ASIC's case. 268 There is no requirement that the assertions align. More to the point, it was not possible for the assertions to align. Neither the ASX nor ASIC had knowledge of the Funding Email during the Relevant Period. Mr Geneste's evidence establishes that the Funding Email was produced by Antares to ASIC in response to a notice issued under s 33 of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) and dated 1 October 2015. 269 As to the Purchaser Identity Information, ASIC and the ASX required disclosure at the time. 270 As to the absence of verification or due diligence, the issue was clearly raised by the ASX by its request for information about due diligence, as recorded in the email from Mr Smith to Mr Cruickshank of 10 September 2015 (8.16 pm AWST). It is not surprising that questions about due diligence crystallised further for ASIC upon receipt of the Funding Email and having regard to the content of the December 2015 Update provided to the ASX (a document created after the Relevant Period). 271 In those circumstances I do not consider that the manner in which the ASX communicated with Antares' representatives during the Relevant Period supports an argument that ASIC has failed to describe clearly for the purpose of these proceedings the information it says ought to have been disclosed. 272 As to the particular criticisms of the categories of information as described in the Concise Statement, it is also important to recognise that the Concise Statement itself provides context around those categories: see [19] of the Concise Statement set out above. The materiality of the Purchaser Identity Information and the Cumulative Information falls to be considered in the context of the information that was disclosed and that which was publicly known. Mr Bowers undertook that task. As will be seen, the matters listed in [19] were addressed by Mr Bowers in considering the context of the information said to require disclosure. 273 I will turn now to specific contentions made by Mr Cruickshank about each of the three information categories.

[48]

Absence of finance approval 275 Mr Cruickshank contends that the Incomplete Financing Approval Information never existed and is a construct. I do not agree. The Funding Email in the context of the timing of the execution of the PSAs comprises relevant evidence that prima facie Wade Energy did not have in place all of its necessary financing for the transactions as at 6 September 2015. There is no other evidence that undermines that natural and commercially sensible understanding of the email. Mr Bowers also understood it as such. The fact that it is but one email relating to the transactions does not diminish its value, contrary to Mr Cruickshank's submission. 276 The Funding Email relevantly states that, 'I got approval on my secondary lender for Northern Star only' and that Mr Hanson is 'working on another for Big Star'. Mr Hanson further says he 'won't know anything on Big Star until midweek' - a day that in light of the established chronology would be after the PSA Announcements. Mr Hanson told Mr Cruickshank that Antares' approach to Big Star was therefore 'your call'. The content of that email is sufficient to demonstrate that Wade Energy did not have all of its financing in place at that time for completion under the Big Star PSA. Mr Cruickshank's reply to Mr Hanson on 6 September 2015 includes reference to Big Star and a willingness to 'be patient'. To my mind the inference is clear that Mr Cruickshank was referring to patience in obtaining confirmation of finance approval for the Big Star transaction. The 8 September 2015 email in which Mr Hanson says to Mr Cruickshank that he wants to 'have a chat' with private equity firms about Big Star, whilst not compelling on its own, in context supports the inference that the financing for the acquisitions was incomplete. There is no evidence that Mr Hanson or Wade Energy ever communicated to Antares or Mr Cruickshank that it had obtained finance in respect of the Big Star transaction. 277 Having regard to those matters, I have no difficulty in finding that the evidence justifies an inference being drawn that Wade Energy's finance approval for the Big Star transaction was incomplete. 278 It has not been necessary to resort to the rule in Jones v Dunkel in making that finding. However, Mr Cruickshank's unexplained absence as a witness and that he could have elucidated the circumstances and contents of his communications with Mr Hanson about Big Star's finance means that it would be open to rely on that rule.

[49]

Absence of due diligence 279 Mr Cruickshank contends that the description of information as the 'Absence of Independent Verification Information' is not information at all. Acknowledging that information must be clearly described, I consider the position was made sufficiently clear by the Concise Statement and was understood by Mr Bowers who, as will be seen, addressed it having regard to appropriate contextual matters. 280 The description must be read with [19] of the Concise Statement which makes clear that the information is to be considered in circumstances where there was limited information available to the investor about the capacity of Wade Energy to complete the purchase (and Mr Bowers confirmed there was limited public information available) and in circumstances where investors would have expected that Antares would have undertaken an independent verification and due diligence of its capacity to complete before making an unqualified announcement to the market (again, a matter confirmed by Mr Bowers). 281 The question raised by the information as described is whether a process was engaged upon by Antares to verify or otherwise determine the capacity of Wade Energy to complete the transactions, having regard to the relevance of such a course in the given context. The question is not whether there had been a process that guaranteed or established with absolute certainty that Wade Energy in fact had the capacity to complete. Information to the effect that no real verification or due diligence process was undertaken is information of itself. 282 Put simply, there was no probative evidence that Antares had taken steps to verify the capacity of Wade Energy to complete. At its highest there was evidence via Mr Smith's communications to the ASX that Antares 'believed' Wade Energy would complete, a statement seemingly endorsed by Mr Cruickshank having regard to Mr Smith's email to him of 10 September 2015 8.16 pm AWST. There is no evidence that Mr Smith had any independent basis for a 'belief'. Mr Clohessy's evidence does not advance matters: see [197]-[200] above. Mr Clohessy had no independent knowledge of who was backing Mr Hanson prior to or during the Relevant Period and relied on Mr Cruickshank's assessment, an assessment that is not disclosed or described in the evidence. Even aggregating such knowledge or beliefs and attributing them to Antares, there is no foundation nor factual evidence disclosed for the 'belief'. 283 This part of ASIC's case is necessarily heavily dependent upon inference. 284 In support of its submission that I may confidently draw an appropriate inference as to the lack of due diligence, ASIC refers to the absence of any explicit response to the ASX's request to be told what due diligence had been undertaken. The request for information was raised during the telephone call with the ASX of 10 September 2015. The request was passed on to Mr Cruickshank in Mr Smith's email to Mr Cruickshank of 10 September 2015 (3.08 pm AWST): Separately the ASX wants to know the level of due diligence undertaken by the Company to ensure the purchaser has the capacity to complete the purchase and a copy of the Agreement. 285 The suggestion from Mr Smith to Mr Cruickshank in his 10 September 2015 email (8.16 pm AWST) as to what he (Mr Smith) would disclose at the proposed meeting with the ASX was guarded, to say the least: In relation to the information request re due diligence I will advise that Antares is of the belief that the purchaser has funding for the transaction, however Antares has only ever, as required by LR 3.1, disclosed to the market that it has received a signed PSA for the acquisition but has made no claims as to whether the purchaser will complete, we have only ever stated exactly what we have and whilst it is our belief that the transaction will be completed we are unable to categorically state that the deal will be completed. Any other information you would like added? 286 The reference to a 'belief' that the purchaser has funding and the 'belief' that the transaction will complete is curious: there is no reference to the basis for the belief, nor to any relevant information that may have been provided by Wade Energy or Mr Hanson to Mr Cruickshank or Mr Smith. Nor does the proposed answer in fact address the question asked by the ASX. It does not describe any level of due diligence. 287 There is no indication Mr Cruickshank sought to add 'any other information' when asked by Mr Smith. There is no reason to conclude that Mr Cruickshank did not receive the two emails of 10 September 2015 from Mr Smith that each referred to due diligence. The usual email address utilised by Mr Cruickshank to send emails was used by Mr Smith. There is no evidence they were not received. There was also a phone call between Mr Smith and Mr Cruickshank that day. I infer from the fact that the email from Mr Smith to Mr Cruickshank of 10 September 2015 (8.16 pm) attached a draft notice that was later revised before lodgement with the ASX, that Mr Cruickshank received the email and was able to provide instructions to Mr Smith. 288 ASIC also relies on a second occasion when a request for information about due diligence was not squarely addressed. That request was made in the letter of 10 November 2015, in which the ASX asked Antares to make disclosure of a number of matters including 'a description of the due diligence inquiries [Antares] has made and the outcome of those enquiries'. As events indicate, no such disclosure was made at that time. The December 2015 Update provided to the ASX did not describe the due diligence inquiries but rather stated: The closing of the sale of the Northern Star and Big Star projects is subject to inherent risks and uncertainties, some of which are beyond Antares' control. These risks and uncertainties include contractual risks associated with the Purchaser defaulting on its obligations under the Amended Purchase and Sale Agreements and the credit risk associated with the Purchaser and its private equity financiers. As the Purchaser is a private equity purchaser, there is limited public information relating to the Purchaser, its finances and operations. Antares has been provided with limited information relating to the finances of the Purchaser and its private equity financiers but is continuing to engage with the Purchaser. Similar to other transactions of this nature, there can be no assurance or guarantee that closing will occur. 289 That caveated description of the closing prospects and the reference to Antares having been provided with 'limited information' relating to Wade Energy and its finances support an inference that Antares had been unable to carry out due diligence or otherwise determine the capacity of Wade Energy to complete the PSAs. When the 'limited information' was disclosed to Antares is unknown, but the inference can sensibly be drawn that even if it were available during the Relevant Period, it was not of a nature that permitted Antares to conduct appropriate due diligence: the qualifications in the December 2015 Update as to credit risk, contractual risk and 'no assurance or guarantee of closing' to my mind acknowledge this. 290 There is no other probative evidence that suggests that Antares was able to or in fact carried out due diligence prior to or as at the Relevant Period as to the prospects of Wade Energy settling on the acquisitions. 291 Therefore, I infer that (for whatever reason) Antares had not carried out due diligence or otherwise determined the capacity of Wade Energy to complete the PSAs prior to or during the Relevant Period. 292 Mr Cruickshank asserts in supplementary closing submissions that there is unchallenged evidence of steps taken by Antares to assess the likelihood that the transaction would settle. In support of that submission, Mr Cruickshank relies on the email exchanges between Mr Cruickshank and Mr Hanson of 6 September 2015 at 6.01 am and 8.15 am AWST; the First and Second PSA Announcements; the email of 10 September 2015 from Mr Smith to Mr Cruickshank at 8.16 pm AWST; the PSAs; and the PSA Clarification Announcement. I have already dealt with the emails. I do not consider they comprise probative evidence of any due diligence as to Wade Energy's capacity to complete. There is no reference in the PSA Announcements or PSA Clarification Announcement to due diligence having been undertaken. Similarly, there is no such reference in the PSAs. I am unable draw an inference from those identified documents that would contradict or undermine the inference that I have found can be drawn naturally and reasonably from the collective evidence. No basis for a competing inference is established. 293 Further, I am prepared to apply the rule in Jones v Dunkel, and in doing so I take into account the care that must be taken having regard to s 140 of the Evidence Act. 294 In his Concise Response Mr Cruickshank stated that he exercised reasonable diligence in seeking to determine Wade Energy's ability to settle the transaction through its private equity funding. Having asserted that, Mr Cruickshank provided no explanation as to what the exercise of reasonable diligence entailed. There is no evidence that Mr Cruickshank undertook investigations and completed enquiries about Wade Energy or Mr Hanson, nor that he exercised any due diligence. There is no evidence that Mr Cruickshank was informed that Wade Energy had obtained finance with respect to the Big Star transaction. 295 There is no reference to any inquiry or due diligence despite the fact that the ASX had asked for information about the level of due diligence during the Relevant Period. 296 The only evidence prior to or during the Relevant Period that addresses that issue is the assertion through Mr Smith's correspondence of a 'belief'. 297 Mr Cruickshank could have explained what the steps were as alluded to in his Concise Response. He could have explained the significance of the reference to a 'belief' in the correspondence which was provided to the ASX with his knowledge. He could have explained the history and significance of the matters referred to in the December 2015 Update. He could have explained whether the capacity of Wade Energy to complete was addressed in some other manner. It is therefore an available inference that the evidence which he could have given about those matters would not have assisted the case of the defendants. I therefore have greater confidence in drawing the inference that there was an absence of due diligence by Antares about the capacity of Wade Energy to complete its obligations under the PSAs. 298 Therefore, I consider the information as described in the Concise Statement existed and was sufficiently described. 299 I add that there is no general principle that the directors are obliged to carry out due diligence. ASIC's case does not depend on a breach of any such obligation. Rather, in the context of all of the disclosed information, and in particular the announcement of transactions of such a significant scale, then its case is that disclosure about the lack of due diligence was required.

[54]

No probative evidence of information that was confidential information that the ASX considered had ceased to be confidential 308 Although Mr Cruickshank contends that there was a confidentiality term, or 'underlying requirement' that Wade Energy's identity not be disclosed, the evidence does not establish that to be so. 309 There was no direct evidence establishing Mr Cruickshank's claim in the Concise Response that Wade Energy insisted on confidentiality. There was no evidence that supported Mr Cruickshank's claim in the Concise Response that an insistence on confidentiality was consistent with his experience. 310 As Mr Cruickshank did not give evidence, it has been necessary to consider carefully the extent and probative value of the available evidence. In particular, I have taken into account the following matters. 311 The PSAs do not contain any terms that limit the disclosure by Antares of the name of or information about Wade Energy. 312 The PSAs contain a 'complete agreement' clause that as a matter of construction, and absent evidence that might establish a variation, tells against the implication of a confidentiality term or incorporation of an oral term as to confidentiality. 313 There is no other document or agreement that comprises evidence of such a term. 314 Evidence of communications between Mr Cruickshank and third parties following the First PSA Announcement suggested that those third parties did not operate in a manner consistent with any known common practice of confidentiality. Antares' submission to the ASX included the claim that Mr Cruickshank had received more than 50 calls from companies and intermediaries trying to find out the identity of the buyer. As suggested by the appendix to the submission, a representative of the Royal Bank of Canada apparently was one of those callers. The Vice Chairman of Macquarie Capital (USA) Inc in Texas asked if Mr Cruickshank would provide the name of the 'private equity' purchaser. 315 Mr Smith did not give evidence and his statements to the ASX did not reflect any personal knowledge on his part of any confidentiality term. I have already addressed the manner in which he took instructions from Mr Cruickshank. At its highest, Mr Smith made assertions on the basis of information or instructions provided by Mr Cruickshank. In the absence of any direct evidence, I do not consider the assertions in communications from Mr Smith to the ASX, made after the issue of disclosure of the purchaser's name arose and that apparently reflect what Mr Smith has been told by others, to be persuasive evidence of the fact of an underlying binding confidentiality agreement, even accepting the written communications to be business records. In saying this I have applied the principles discussed at [41]-[43] above. Mr Clohessy's evidence as to his understanding that Mr Hanson had required confidentiality was also based on what he had been told by (apparently) Mr Cruickshank and his evidence disclosed no personal or direct involvement or knowledge. 316 At one point (the 11 September 2015 meeting) Antares offered to disclose the name of the purchaser to the ASX, but not to ASIC. Further, the name of Wade Energy was subsequently disclosed to the ASX and later to the noteholders. There is no evidence that prior notice of disclosure was given to Wade Energy or that its consent was sought for such proposed or actual disclosure. 317 At this point it is necessary to say something about Mr Looper's expert report. Mr Looper provided evidence from his perspective as a legal practitioner in Texas specialising in tax and energy transactions about the 'standard, common or usual commercial practice' of non-publicly traded purchasers of oil and gas working interests in Texas with respect to the publication of the terms of their commercial agreements, information about the contracting parties and the identity of the legal entity that was to purchase the asset or assets. 318 Mr Looper's evidence was that the most common practice by private equity purchasers in Texas for preventing the publication of the terms of the transaction or the existence of the contract is the execution of either a separate confidentiality agreement or a confidentiality covenant set out in the relevant letter of intent or binding purchase contract. Mr Looper also referred to examples where purchasers who have securities disclosure obligations may have a mandate to control the release of information such as identity. There was no evidence of any such condition in the PSAs. 319 Mr Looper's evidence is expressed at a high level of generality. The evidence is not tied to these proceedings, Antares or Wade Energy. It says nothing about the effect of statutory disclosure obligations on contractual obligations of a vendor. In my view it is not probative of the question in these proceedings as to whether or not there was a condition in place between the parties. 320 I am not satisfied, having regard to all of those matters, that there was a requirement on the part of Antares to maintain as confidential the identity of Wade Energy until the transactions completed. Nor am I satisfied that exposure by Antares would have entitled Wade Energy to 'withdraw' from the PSAs. My findings would be the same regardless of any question of onus. 321 In circumstances where the PSAs were already executed and the transactions were said to be unconditional, absent a requirement as to confidentiality, it is difficult to discern on what basis it would have been open to Wade Energy to walk away lawfully from the deal had there been disclosure by Antares to the market. There is no admissible probative evidence that Wade Energy would have so acted or had threatened to do so. 322 Before leaving the issue to which Mr Looper's evidence related, for completeness it is necessary to rule on ASIC's objection to a particular paragraph of his report, being the final paragraph of Part 7. That paragraph did not appear to be responsive to the particular questions upon which Mr Looper was asked to opine. Mr Looper made a general statement about the rationality of a company, that is seeking oil and gas exploration and development investment, expecting that private equity funding is available in circumstances where a party claims to be backed by private equity. Leaving aside difficulties with the drafting of the paragraph (it does not read coherently), Mr Looper's expertise in opining on the rationality of the expectations of such a company is not established. The objection to the paragraph is upheld. It is in any event not of probative weight having regard to its generality and incoherence. 323 Returning to the relevant exception set out in Listing Rule 3.1A.2, in any event the ASX had not formed the view that the information had 'ceased' to be confidential. The ASX considered the information as to the purchaser's identity was not confidential in the first place: see [222]-[226] above. Listing Rule 3.1A.2 simply did not apply. In order for information to be excluded from disclosure, each of the three limbs of Listing Rule 3.1A must be satisfied. That Listing Rule 3.1A.2 was not satisfied is sufficient to exclude the operation of the exception. 324 I add that it was not argued by Mr Cruickshank that the other two categories of information relied upon by ASIC were confidential. As to the aspect of ASIC's claim that relies on the cumulative effect of non-disclosure, it would still be necessary for confidentiality to be established, and so even considering the totality of the information, confidentiality would not be established for the purpose of the Listing Rule 3.1A exceptions. 325 However, for completeness I will refer below to the only other limbs that might be said, based on Mr Cruickshank's submissions, to have some potential operation.

[58]

Qualifications of expert 332 Mr Bowers holds Bachelor of Commerce and Bachelor of Laws degrees from The University of Western Australia. His professional experience encompasses nine years as a mining equities analyst for Macquarie and Royal Bank of Canada; approximately one year in a specialist mining equities sales and trading role for Macquarie; and approximately five years as a boutique corporate advisor and equity market consultant in his own business partnership. He also has experience in mining equities research. Such experience includes approximately two years as the Head of Australian Mining Research at Macquarie. 333 Mr Bowers explained that his core role as a mining equities analyst involved ongoing coverage and evaluation of ASX listed Australian mining and exploration companies as investment prospects. His role included publishing detailed company analysis and evaluations. His core role as a specialist mining equities salesperson involved interaction with institutions and investor clients in relation to investment advice, trading strategy, issue of offerings and broader market flows and observations. 334 In general terms the aspect of both roles was impact analysis, including likely share valuation and price movement and market trading dynamics stemming from new information or factors. Both roles provided direct and regular interaction with a wide spectrum of investors in the Australian equity market including extensive exposure to different investment processes and trading decision-making criteria. 335 Mr Bowers said that his expertise was centred on investment analysis and trading dynamics in ASX listed equities, most particularly mining and exploration companies, including asset evaluation, corporate and asset benchmarking, new informal price/value impact and sensitivity analysis, investment advice and trading strategy and the investment processes and trading decision-making criteria of a wide range of Australian market investors. 336 Mr Bowers said that one of the key aspects of his role as a boutique corporate advisor and equity market consultant is advising corporate clients, predominately mining and exploration companies, on likely investor reaction and share price movements in relation to the potential announcement of new pieces of information. 337 Mr Bowers summarised his experience as 15 years of direct interaction with institutional and retail investors, the core of which being detailed discussion on the assets bases, growth prospects, management teams, shareholder registers and investment merits (including valuations) of various companies listed on the ASX. This interaction has taken many forms including physical meetings, telephone conversations, email exchanges, group presentations, requested bespoke analysis preparation and general research reports. He explained that through this interaction, he has made extensive observations of the various investment processes and trading decision-making of wide ranging investor groups and individuals and has gained insight in that regard. 338 It has been necessary to provide this level of detail as to Mr Bowers' qualifications and the questions asked of him because Mr Cruickshank challenged Mr Bowers' expertise.

[59]

Scope of report 339 Mr Bowers was asked by ASIC to address the following five tasks: (1) to describe the persons he would have expected to have commonly invested in securities of listed corporations in Australia during the Relevant Period (Relevant Investors); (2) to describe how, in the Relevant Period, Relevant Investors typically determined whether to acquire or dispose of securities of listed corporations; (3) to describe what statements or information disseminated by Antares (or a similar listed entity) would be likely to influence Relevant Investors in deciding whether to acquire or dispose of securities of Antares in the Relevant Period; (4) in the period between the release of the First PSA Announcement on 7 September 2015 and the suspension of Antares from official quotation by the ASX on 15 September 2015, would knowledge of the identity of the purchaser of the Northern Star Assets and the Big Star Assets, if that information had been generally available, have been likely to influence Relevant Investors in deciding whether to acquire or dispose of Antares securities (limited at the hearing to shares); (5) in the period between the release of the First PSA Announcement on 7 September 2015 and the suspension of Antares from official quotation on 15 September 2015, would knowledge of cumulatively: (a) the identity of the purchaser of the Northern Star Assets and the Big Star Assets; (b) that Antares had not independently verified or otherwise determined, as at the respective times of the PSA Announcements and its announcement of 15 September 2015, the capacity of Wade Energy to complete either of the PSAs; and (c) that on or about Sunday 6 September 2015 Wade Energy had informed Antares that it had only received approval for its secondary lender for the purchase of the Northern Star Assets and that while it was working on another secondary lender for the purchase of the Big Star Assets it would not know anything on that issue until the middle of the forthcoming week, if that information had been generally available, have been likely to influence Relevant Investors in deciding whether to acquire or dispose of Antares securities.

[62]

Task 2: How did Relevant Investors typically determine whether to acquire or dispose of securities? 347 Mr Bowers then described different types of approaches to investments. He explained the dichotomy between passive investment and active investment, the former focusing not on individual decisions about acquiring or disposing of particular securities, but on index investing (acquiring a portfolio of securities in exactly the same proportions as specified securities equities market such as the ASX100). 348 Typically passive investors tend to be most prevalent in the securities of listed corporations at the larger end of the listed company spectrum. Moving down the size and liquidity scales it becomes increasingly likely that while investors in those companies typically include some index investors, the vast majority are active investors, and the day to day trading volume in those securities is predominantly that of active investors. 349 Mr Bowers explained that typically active investors focus predominantly on the relative fundamentals of each listed company: that is, macro trends relevant to the business, forecast earnings and cash flows, expected rates of return on capital and equity and estimated net present value. He said that it is typically those investors that might be influenced by new information that might be relevant to pricing. Accordingly, Mr Bowers focused on the approach of those Relevant Investors who are active investors, who he described as 'fundamentally-driven active Relevant Investors'. Mr Bowers noted that in some cases the investors' fundamental analysis might be extremely limited - but that did not mean they fell outside that class. 350 Mr Bowers explained that active investors attempt to identify securities that are mispriced relative to their underlying value or their expected price at a future point, and their acquisition or disposal of shares is aimed at exploiting any mispricing. The search for mispricing involves identifying individual securities where the forecast reward from owning the security is not commensurate with the expected risks borne with ownership. Practically, this means finding securities where the current share price differs materially from an investor's estimate of the 'current risk-weighted valuation' for that security. Explained by way of a simple example, if the current share price is $0.50 and an investor, having considered information about the company, values its share price at $0.80 (the investor's current risk-weighted valuation), then the investor will be motivated to acquire more shares to take advantage of that differential. 351 It is important at this point to note that Mr Bowers quite deliberately focused on the decision-making processes of active investors who are driven by fundamentals. As he explained under cross-examination, in doing so he was describing a framework for the decision-making of a great many of the class of Relevant Investors, and that in his opinion the framework involved, at its core, mispricing with some reference to the fundamentals. He said that the vast majority of the class of Relevant Investors are people for whom the fundamentals occupy the 'predominant core of their decision-making'. Therefore, he was not seeking to narrow the class: to the contrary, he was seeking to explain a framework that in fact was relevant to the vast majority of Relevant Investors. 352 The question then is how do those fundamentally driven active Relevant Investors make their estimates of the current risk-weighted valuation for securities in a particular company? 353 Mr Bowers explained that there are a wide range of factors that might feed into the process, having regard to the particular industry: in the case of a resources company, expectations of future oil/fuel prices, expected output production, life of mine for example all play a part. Information may be sourced from different avenues including ASX announcements, exchange data, media and online investor chat rooms. There are also different valuation methodologies that might be adopted by Relevant Investors, such as discounted cash flow modelling to arrive at a net present value (a common valuation methodology in the resources sector) or average historical returns on invested capital. The net debt must be accounted for in arriving at a final estimate of equity (and so security) value of the company. In light of this range of factors and valuation methodologies, Relevant Investors may arrive at a range of current risk-weighted valuations for any given security. 354 Mr Bowers also noted that many Relevant Investors do not necessarily undertake their own assessment of the current risk-weighted valuations but rely on information from brokers or third parties. 355 However, Mr Bowers noted that in the situation where there is a bid for a company's key assets, the potential manner of estimation and the range of estimates of valuation narrows because the price offered may, in simple terms, be viewed as current worth, as it reflects 'what somebody is willing to pay for it'. He explained that this is particularly so where there is an executed sale agreement for those assets. The sale price effectively crystallises the value of the asset. Moreover, the seller is contractually bound to complete the sale agreement and so typically not able to gain the benefit of an interloper subsequently offering a higher price. The sale price is therefore a highly tangible measure of current valuation, although 'un-risked' in the sense that it assumes the sale will complete. 356 Therefore, Mr Bowers explained, in such a situation the question of current risk-weighted valuation is typically refined towards a simple combination of multiplying the net value achieved by the estimated likelihood of the sale completing, less net debt. He said that it is a natural conclusion, but also readily observable in market behaviour, that the higher the assessment that a sale is likely to complete, the closer the investor's estimate of the current risk-weighted valuation is to the sale price (after accounting for debt). 357 Mr Bowers explained that Relevant Investors will have regard to a number of sources in assessing the likelihood of completion. He considered that heavy emphasis is placed by Relevant Investors on any information that might speak to the dynamics of completion, such as: the background and track record of both transacting parties; the financial firepower of the buyer; the relative size of the aggregate transaction value; recent comparative transactions in the relevant sector; and any specific conditions in the sale agreement itself. 358 Finally on this topic, Mr Bowers explained that, having regard to the Relevant Investors as a class, and acknowledging the range of assumptions that might be made by them, they tend to arrive at a range of current risk-weighted valuations for any given security. The last traded price of any share reflects the overlap of such range: 'the traded price reflects the "clearing" risk-weighted valuation of all Relevant Investors at that time'. The introduction of a new piece of information will notionally cause all Relevant Investors to re-assess their current risk-weighted valuation and the new trading price will 'settle' and reflect that re-assessment.

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Task 3: What statements or information would be likely to influence Relevant Investors in deciding whether to acquire or dispose of securities in the Relevant Period? 359 Mr Bowers commenced this part of his evidence by considering broader matters relating to Antares, such as its specific asset base and financial position at the time. He reviewed available information such as previous ASX announcements and historical share price data. From that information, Mr Bowers identified the following: (1) prior to the opening of the market on 7 September 2015, shares in Antares had a last traded price of $0.09 per share; (2) the Northern Star and Big Star Assets appeared to be the only significant lease holdings of Antares and comprised its major physical assets; (3) Antares had minimal revenue; (4) Antares had no existing drilling commitments; (5) Antares had estimated cash outflows of 'just A$1 m for the September 2015 quarter'; (6) other parties on nearby leases to those held by Antares had recently agreed to sizeable sale transactions; (7) Antares' key financial assets were its cash balance ($7 million at 30 June 2015) and its holding of shares in Breitburn; (8) Antares had $47.5 million of convertible notes on issue with a next reset date of 31 October 2015: noteholders could elect to redeem their convertible notes at the reset date or convert them to shares at a ratio of three shares per one note; (9) Antares had a $200 million five year credit standby arrangement facility in place with Macquarie Bank Limited which was at that time undrawn, but it was not clear whether any conditions or lender approvals governed the potential drawdown of the facility; (10) benchmark oil prices had declined in the preceding year; and (11) over the course of the preceding year the Antares share price had declined over 80% to its closing price of $0.09 on 4 September 2015. 360 Mr Bowers said that in the context of this information, Relevant Investors were likely to characterise Antares as being in the position of: (1) earning minimal revenues and expending a modest amount on project activities, being the Northern Star and Big Star Assets; (2) having potential debt repayments of up to $47.5 million on or around 31 October 2015, compared with financial assets totalling around $23 million and an undrawn credit standby facility on which there was little clarity as to its practical ability to draw down; (3) possessing reduced capability to raise a significant quantum of new debt or equity funding by virtue of the large declines in oil prices and the Antares share price over the preceding year; (4) owning physical assets that have potential buyers and at possibly attractive prices; and (5) being in ongoing discussions with possible joint venture partners, project funders and potential acquirers of the Northern Star and Big Star Assets. 361 Mr Bowers then considered against that context the sorts of statements or information disseminated by Antares or a similar corporation that would be likely to influence Relevant Investors in deciding whether to acquire or dispose of shares in the Relevant Period. He provided a long list of such information including drilling results on nearby leases; activity on nearby leases; new funded drilling plans at Northern Star or Big Star; drilling results at Northern Star or Big Star; large scale or hot spot new acreage acquisitions in the area where Antares operated; acquisition interest in Antares; strategic shareholding acquisitions or disposals; new corporate funding secured by Antares that might remove or reduce the perceived debt repayment overhang and potentially deliver funds for drilling activities; high profile senior management additions or departures; and (of particular relevance in this case) transactional activity involving Northern Star or Big Star such as sale agreements or joint venture formation agreements involving significant ownership interest in the Northern Star or Big Star Assets. Mr Bowers did not suggest such a list was exhaustive.

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What might be drawn from content of announcements 362 Mr Bowers commenced this part of his evidence by considering the impact of the PSA Announcements (Mr Bowers considered the First and Second PSA Announcements would have been viewed as duplicates by Relevant Investors and did not require separate treatment, and he referred generally to the First PSA Announcement: nothing turns on this). 363 Mr Bowers said the execution of the PSAs would see many Relevant Investors likely imply binding contractual sale obligations on the part of Antares and the unnamed purchaser because in the overwhelming majority of readily observable examples in listed securities markets, such expressions are used to reflect a binding deal, subject to satisfaction of any conditions precedent. He explained that the use of the term 'private equity purchaser' would provide minimal detail to Relevant Investors but that they are likely to understand that the purchaser is neither a publicly listed or government-owned entity. He considered the likely assumption of many Relevant Investors would be that the consideration for the assets was 100% denominated in cash and that the full cash payment was to be made upon completion of each PSA. He said this view was likely to flow from the absence of reference to any deposit. If there were a deposit, many Relevant Investors would logically expect the company to mention it as it would be a distinct positive benefit. 364 The reference in the PSA Announcements to the gross pre-tax proceeds being subject to customary closing adjustments, taxation and frictional costs would in Mr Bowers' view simply confirm what would naturally be assumed by many Relevant Investors, being that the gross sale proceeds would be subject to adjustments for matters such as interest at settlement. 365 Mr Bowers then turned to whether there was anything in the PSA Announcements from which Relevant Investors might infer that there were any significant conditions precedent. First, he noted that no conditions precedent were stated in the PSA Announcements. Second, he considered the reference to usual commercial closing conditions and adjustments would not of itself suggest any significant conditions precedents but would only tend to imply procedural-type adjustments. However, Mr Bowers acknowledged that some Relevant Investors might infer from the statement in the PSA Announcements that 'shareholder meeting information' was to be announced 'in due course' that there was a condition precedent that required shareholder approval. 366 Further, some Relevant Investors, particularly those with a relatively higher level of financial sophistication, might infer that the PSAs were 'significantly conditional' based on the failure to identify the purchasing party. According to Mr Bowers, a typical reason for a confidentiality agreement is that the counterparty insists on it. If there are certain conditions precedent that the counterparty may not believe have a high likelihood of being satisfied, the counterparty may seek confidentiality to avoid suffering reputational brand damage from being involved in a 'failed agreement' if the conditions precedent are not satisfied. 367 However, having considered the potential for an inference to be drawn as to conditionality, Mr Bowers said that such potential was diminished by a significant matter, being the prevailing widespread practice amongst ASX listed companies to disclose significant conditions precedent. Mr Bowers concluded that the prospect that Relevant Investors would draw an inference of significant conditionality over and above the potential requirement for shareholder approval is heavily negated by that practice. Whilst some more financially sophisticated investors might infer some level of conditionality, critically, many less financially sophisticated Relevant Investors would be unlikely to consider the possibility that there were undisclosed conditions precedent. 368 Against the backdrop that the content of the PSA Announcements (a transactional activity involving Big Star and Northern Star Assets) was such that it was likely to influence Relevant Investors, Mr Bowers then turned to the framework he had explained in response to his second task. 369 Mr Bowers explained that an agreed sale of Antares' key assets is likely to impact positively on many Relevant Investors' estimates of the current risk-weighted equity value. He explained that, in simplistic terms, if expenses are removed from the proceeds of sale, the equity value for Antares would be a multiple of the prevailing market capitalisation of Antares. More particularly, from a starting point of the expected proceeds (A$362 million), Mr Bowers deducted the 'highly conservative' (i.e. high) figures of A$36 million by way of closing adjustments; A$127 million by way of US Federal corporate tax; and A$18 million by way of transaction costs, leaving a post-tax yield of A$181 million. Reducing that by Antares' net debt (A$24 million) results in an 'unrisked read-through equity value' of Antares post-completion of approximately $0.65 per share (A$157 million divided by 240.5 million shares on issue). That figure of $0.65 per share is to be contrasted with the pre-market closing share price on 7 September 2015 of $0.09 per share. 370 That was but one example of how the equity value might be affected. Mr Bowers noted that if that highly conservative approach to closing adjustments, taxation liabilities and transaction costs was put to the side and the calculations were re-done with only half the assumed impact of those adjustments, the equity value would rise to $1.03 per share, over 1,000% higher than the prevailing Antares share price of $0.09 per share. 371 Mr Bowers explained that it was then appropriate to consider a list of factors that Relevant Investors might take into account in assessing the likelihood of the PSAs completing and that would impact on that risk-weighted equity value. Factors in favour of a higher estimated likelihood of the sales completing included that the PSA Announcements had the hallmarks of indicating a binding agreement with the purchaser with an identified specific closing date. 372 Factors in favour of a lower estimated likelihood of the sales completing included the lack of specific identification of the purchaser, which would see some caution exercised on the part of Relevant Investors. The reason for caution would be that where the purchaser is undisclosed there is little ability to ascertain the capability or otherwise of the purchaser to meet its contractual obligations or assess any publicly available track record of it doing so (or failing to do so). Other factors in favour of a lower estimated likelihood of completion include the apparent absence of a deposit; the potential concern if an inference is drawn that non-disclosure of the purchaser's name might reflect that there may be conditions precedent that the purchaser may not believe have a high likelihood of being satisfied; and that there had been a previous transaction in which Antares had announced that it had withdrawn from the sale process although it appeared to have had a binding sale agreement (February 2014 announcement), a course that might lead some Relevant Investors to infer that despite appearances to the contrary, it might be that the PSAs were not binding. 373 Mr Bowers also noted that some Relevant Investors might be sceptical as to the bona fides of the PSAs having regard to the timing, the transactions having been announced in the face of Antares having the potential debt repayment obligation of up to $47.5 million in less than two months from that time. 374 Mr Bowers was open about the list of conflicting factors and that the Relevant Investors as a class were likely to arrive at a range of estimated likelihoods of the PSAs completing. However, he said that he was comfortable that two conclusions could be reached. First, he considered that Relevant Investors with a relatively higher level of financial sophistication might place a lower probability on the likelihood of the PSAs completing but that those same negative factors were likely to be less influential with Relevant Investors of a relatively lower level of financial sophistication who might place a higher relative probability on the likelihood of the PSAs completing. Second, Mr Bowers considered that the Relevant Investors as a class would estimate a completion likelihood range stretching from very unlikely (approximately 10%) through to fairly likely (approximately 70%). 375 By way of example, Mr Bowers then adjusted the risk-weighted equity value to take into account the average estimated likelihood of completion (at 40%). Taking the A$181 million net sale value as calculated above and multiplying by 40% leads to a risk-weighted asset value of approximately $72 million. Subtracting the A$24 million leaves a current risk-weighted equity value of A$48 million, or approximately $0.20 per share, an increase of some 120% on pre-market closing share price on 7 September 2015 of $0.09. 376 Again, if adjustments were treated less conservatively as in the second example above, the risk-weighted equity would rise to A$84 million, or approximately $0.35 per share, an upside of some 280%. 377 Mr Bowers concluded that it is clear that, given the magnitude of the aggregate sale proceeds under the PSAs relative to Antares' current market capitalisation, a substantial proportion of Relevant Investors would be expected to arrive at a risk-weighted equity value for Antares that is substantially above the prevailing Antares share price. 378 Having undertaking those tasks Mr Bowers then summarised his opinion as to the expected influence of the First PSA Announcement. He concluded that: (a) for many Relevant Investors the considerable positive change in their current risk-weighted valuation of Antares securities would likely have seen their valuation rise to a level significantly above the prevailing Antares securities price ($0.09). The content of the First PSA Announcement would have caused many Relevant Investors to see Antares securities as significantly undervalued at the last traded price. As such, in the absence of other relevant information, many of these Relevant Investors would have been likely to be influenced to acquire Antares securities post the release of the First PSA Announcement, or if they were already holders of Antares securities, many would have been influenced not to dispose of them; (b) many news-flow traders and other analogous Relevant Investors were similarly likely to be influenced to acquire Antares securities post the release of the First PSA Announcement, or if they were already holders of Antares securities, many influenced not to dispose of them; (c) for these reasons, the content of the First PSA Announcement was likely to influence many Relevant Investors to acquire Antares shares, and influence many Relevant Investors who were existing holders of Antares securities not to dispose of them, post the release of the First PSA Announcement; and (d) while many Relevant Investors were likely to be so influenced, the most likely to be influenced were retail investors that were relatively financially unsophisticated (many of whom may not receive any investment advice from their broker(s)), tended to adopt a news-flow oriented investing/trading approach and were, accordingly, more likely to arrive at higher relative estimates for the likelihood of the PSAs completing.

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Impact of the PSA Clarification Announcement 379 Mr Bowers then considered the likely interpretation of the PSA Clarification Announcement, noting that it provided additional information to that contained in the First PSA Announcement. He explained that confirmation that the sale proceeds would be paid in cash validated the prior assumption that would have been made by Relevant Investors. The statement that there are no conditions precedent to be effected prior to settlement would strengthen the view previously arrived at by many Relevant Investors that there are either no significant conditions precedent in the PSAs or that the only significant condition precedent that might exist is that of shareholder approval. Mr Bowers explained that many Relevant Investors will arrive at the same place post the PSA Clarification Announcement but with a stronger conviction: that is, that the only likely significant condition precedent that might exist in the PSAs is that of shareholder approval. 380 Mr Bowers explained that notwithstanding, those Relevant Investors with a higher level of financial sophistication are likely to remain cautious that there may be other significant conditions precedent that exist. 381 The expected impact of the PSA Clarification Announcement is predominantly cumulative in that when the additional information present is combined with the contents of the First PSA Announcement it serves to increase significantly the estimated likelihood of the PSAs being completed for many Relevant Investors. The drivers for such an impact are first, the express confirmation that there are no conditions precedent and second, the express confirmation that the purchase consideration is all cash. 382 Mr Bowers concluded that the expected influence of the PSA Clarification Announcement is that for many Relevant Investors it would further increase their risk-weighted valuation of Antares securities, such that the valuation would rise to a level significantly above the prevailing Antares securities price at the time of release of the PSA Clarification Announcement (then $0.365 per share). So the content of the PSA Clarification Announcement would have caused many Relevant Investors to again see the Antares shares as significantly undervalued. 383 Mr Bowers explained that in the absence of other relevant information, it is his view that many of these Relevant Investors would have been likely to be influenced to acquire Antares shares after the release of the PSA Clarification Announcement (including some that had already acquired shares post the release of the First PSA Announcement) or if they were already holders of such shares, then many would have been influenced not to dispose of them. Mr Bowers said that the most likely to be influenced are those retail investors who were relatively financially unsophisticated. However, he remained of the view that many Relevant Investors were likely to be so influenced.

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Materiality of identity 384 Having explained the context in which Relevant Investors were operating at that time, Mr Bowers then addressed the question of the materiality to Relevant Investors of knowledge of the identity of the purchaser of the Northern Star and Big Star Assets. Mr Bowers noted that express identification of the counterparty was limited to the very general description of 'private equity purchaser'. As Mr Bowers described it, the substantive core of the identity of the purchaser is that Wade Energy was the counterparty taking on the independent purchase commitments of approximately US$149 million cash for the Northern Star Assets and approximately US$105 million cash for the Big Star Assets. 385 Mr Bowers explained that knowledge of the identity of the purchaser is significant in the context of the PSA Announcements for the following reasons: (a) it goes to the heart of the purchaser's ability, and possible intent, to complete the PSAs, predominantly as a result of the substantial quantum of the total purchase consideration. Knowledge of the identity of the purchaser therefore allows Relevant Investors to be far more decisive, positively or negatively, on the specific question of the purchaser's likelihood of completing the agreement; (b) in the situation being addressed, knowledge that Wade Energy is the purchaser is likely to see the average level of caution exercised by Relevant Investors rise significantly for two reasons. The first reason is that there is a likely absence of recognition of Wade Energy amongst Relevant Investors. Even many of the more financially sophisticated Relevant Investors are likely to be wholly unfamiliar with Wade Energy, including the identity of any of the Board members, key management or large shareholders. While Mr Bowers did not consider this to be a conclusive point, he considered it to be unsettling given the significant quantum of the total purchase consideration and particularly for Relevant Investors with a relatively low level of financial sophistication. The second reason referred to by Mr Bowers is that very few details about Wade Energy that are meaningful to Relevant Investors appeared to be available in the public arena. Mr Bowers referred to articles published in the Australian media during the period from 1 September 2014 to 15 September 2015. He also referred to posts placed on the online investment forum website 'HotCopper' in the same period. There were no references to Wade Energy in either of those sources; and (c) although limited public information is not conclusive that an entity is unable to complete a transaction, the relative absence of such information in relation to any specific purchaser holds considerable informational value in itself. In Mr Bowers' view, it would certainly, in the current situation, increase the level of caution exercised by Relevant Investors in relation to the likelihood of completion. 386 In Mr Bowers' opinion, the knowledge of the identity of the purchaser would have significantly negatively impacted or diminished the estimated likelihood of the Northern Star PSA and/or Big Star PSA being completed. This would have the direct impact of significantly lowering the risk-weighted valuations for Antares shares arrived at by many Relevant Investors after the release of the First PSA Announcement and subsequently after the release of the PSA Clarification Announcement. While the valuations of most Relevant Investors would still be expected to increase from the level immediately prior to release of the First PSA Announcement, it is likely that this increase would have been considerably less compared to the expected magnitude of increase in the absence of the additional knowledge of the identity of the purchaser. Fewer Relevant Investors were likely to arrive at the risk-weighed evaluation that was significantly higher than the prevailing Antares share price. 387 As such, a considerable number of Relevant Investors that would have been influenced to acquire Antares shares by the First PSA Announcement and then subsequently the PSA Clarification Announcement would, with the additional knowledge of the identity of the purchaser, have been influenced not to acquire those shares. Similarly, many Relevant Investors may with the additional knowledge of the identity of the purchaser have been influenced to dispose of them. 388 Therefore, Mr Bowers concluded that knowledge of the identity of the purchaser would have been likely to influence Relevant Investors in deciding whether to acquire or dispose of Antares shares during the Relevant Period. 389 Mr Bowers concluded that the identity of the purchaser was highly unlikely to be information that was generally available prior to or during the Relevant Period. He was unable to find any reference to the identity of the purchaser or any relevant commentary available publicly. 390 It should be noted that Mr Bowers also had regard to the potential impact of other Antares announcements made prior to or during the Relevant Period. Relevantly, Mr Bowers referred to the publication of the half yearly report and accounts on 11 September 2015. He noted that the release of the half yearly report document does little more than confirm the increasingly challenged financial position that Antares was in as at 30 June 2015. He said that most of the key financial results had already been disclosed in the quarterly activities and cash flow report released in July 2015. The same applied with respect to the 'going concern' comments which were also a continuation of similar comments made previously as part of the annual report in April 2015. 391 Mr Bowers also conducted cross-checks to ascertain whether there was other generally available information that might have had the potential to moderate or exaggerate the predicted impact of the PSA Announcements on the acquisition or disposal decisions of Relevant Investors during the Relevant Period. For example, Mr Bowers reviewed media searches, online investment forum websites and benchmark oil price movement but considered that none was such as to significantly alter the position. These cross-checks revealed no other generally available information likely to significantly alter the predicted impacts.

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Task 5: Materiality of Cumulative Information 392 Mr Bowers then considered the question of the cumulative effect of the three categories of information listed in the fifth task (that is, the Purchaser Identity Information, the Incomplete Financing Approval Information and the Absence of Independent Verification Information). He did so against the backdrop of his evidence that the context of the PSA Announcements was likely during the Relevant Period to influence many Relevant Investors to acquire Antares securities and to influence many Relevant Investors who were existing holders not to dispose of them. 393 Mr Bowers noted that the PSA Announcements make no express reference to any due diligence that Antares may have undertaken with respect to the purchaser's capacity to complete under the PSAs. Nor do they make any statement as to the absence of any such due diligence. 394 He explained that the key question to be answered is whether Relevant Investors would have expected Antares to have undertaken any independent verification or due diligence in relation to the capacity of Wade Energy to complete. His evidence was that the answer to this is strongly driven by two interrelated factors. The first is the quantum of the purchase consideration and the second is the identity of the purchaser. 395 Mr Bowers explained that where the quantum of purchase consideration is low (for example $1 million) as against high (for example $100 million), there might be a relatively large number of private entities globally with the capacity to complete. However, whatever the total number of entities globally able to deliver $1 million of acquisition funds, the sub-set of that number that is able to complete on a $100 million purchase obligation is a small fraction. Mr Bowers considered that even those with a fairly low level of financial sophistication would be aware of that reality. Therefore, the quantum of the purchase price obligation heightens the significance to Relevant Investors of the knowledge that Antares had not independently verified or otherwise determined the capacity of Wade Energy to complete. 396 Notwithstanding that, if the 'private equity purchaser' was a readily identifiable wealthy private individual or family group, then many Relevant Investors might not necessarily have expected Antares to have undertaken meaningful due diligence activities (Mr Bowers gave the examples of Warren Buffet or Berkshire Hathaway). Existing general knowledge may in effect have provided such verification. However, in the situation of a purchaser such as Wade Energy that lacks a readily identifiable individual name that might obviously have the financial capacity to fund the significant quantum of the purchase obligation, Relevant Investors would typically expect Antares to have undertaken at least some level of due diligence activities as to the purchaser's capacity to meet its funding commitments. 397 Mr Bowers explained that the expectation of verification or due diligence would not be to a level that provides absolute certainty that the funding commitments can be met but rather that the purchaser at least show the potential existing capacity and realistic additional avenues, if necessary, to have a reasonable chance of meeting them. 398 Mr Bowers' evidence was that many Relevant Investors would have believed that a reasonable level of verification or due diligence as to Wade Energy's financial capacity to complete would likely have taken place. That expectation would have well and truly arisen because the PSA Announcements expressly stated that there are executed purchase and sale agreements, the closing of which would be on or before 30 November 2015 (as against being in the early stages of discussions or negotiation, for example). 399 In the absence of any other relevant information, another element that would have encouraged many Relevant Investors to believe that there had been due diligence was the absence of any risk mitigation elements such as a payment deposit or default penalties. 400 Mr Bowers explained that knowledge that Antares had not independently verified or otherwise determined the capacity to complete would serve to further significantly negatively impact on the estimates made by Relevant Investors as to the likelihood of the PSAs completing. It would influence the risk-weighted valuations post the release of the First PSA Announcement. The extent of this relevance would be magnified by the absence of public information relating to the identity of the purchaser. 401 Mr Bowers concluded that, consistent with the approach he had applied with respect to knowledge of the identity of the purchaser, knowledge as to the absence of due diligence or independent verification would have been likely to influence Relevant Investors in deciding whether to acquire or dispose of Antares shares during the Relevant Period. He concluded that the extent of this influence would clearly be expected to be greater than the influence of the knowledge of the identity of the purchaser considered alone. 402 Mr Bowers then addressed the third element of ASIC's pleaded information, being that which relates to the Funding Email. He raised a preliminary point with respect to the Funding Email. Mr Bowers assumed that the reference to 'secondary lender' is a reference to gap funding or differential financing that delivers the final residual funding required for the full purchase price of a given asset. In other words, he assumed that the absence of approval from a secondary lender for the purchase of the Big Star Assets, as referred to in the Funding Email, meant that the purchaser did not, at that time, have full financing confirmed for its purchase of the Big Star Assets. 403 This assumption as to the meaning of 'secondary lender' appears to have been fairly made and is logical in the context of the relevant email exchanges between Mr Cruickshank and Mr Hanson. An inference that it has that meaning can be fairly and responsibly drawn in the circumstances. Mr Bowers was not challenged on it. 404 Mr Bowers considered that the Funding Email conveys that while Wade Energy purportedly has approval from its secondary lender for the Northern Star PSA, it does not have such approval for the Big Star PSA and is working with another secondary lender in respect of that. 405 Mr Bowers considered that the content of the Funding Email is highly relevant to estimates of the likelihood of Wade Energy completing on the PSAs. He noted that it also introduces the consideration of differential likelihoods of completion between each of the two agreements, although ultimately he considers the Funding Email to be material in both contexts. 406 As to Big Star, Mr Bowers explained that the Funding Email provides 'tangible evidence of real possible inability on the part of Wade Energy to complete on the Big Star PSA'. It indicates that it is highly likely that, as at the date of the release of the First PSA Announcement, Wade Energy had not secured full requisite finance to meet its purchase obligations under the Big Star PSA. 407 In Mr Bowers' view, the Funding Email introduces an element of conditionality upon completion that is not otherwise exposed by the First PSA Announcement. In his view it is apparent that Wade Energy has executed the Big Star PSA without securing all requisite finance: this would raise direct concerns in the minds of Relevant Investors as to what sort of commercial counterparty would willingly sign an apparently unconditional independent purchase agreement without having already secured requisite funds. An adjunct question is whether the PSAs might actually contain some sort of condition precedent in relation to purchase finance that has not been disclosed (despite the express statement to the contrary in the PSA Clarification Announcement). 408 Accordingly, the addition of knowledge of the Funding Email would go 'right to the heart', in an incrementally negative fashion, of any estimate of the likelihood of the Big Star PSA completing. 409 As to the position of Northern Star, Mr Bowers notes that the Funding Email might be viewed as tangible evidence by some Relevant Investors of a clear ability on the part of Wade Energy to complete on the Northern Star PSA, although factors that might qualify such view include the lack of knowledge with respect to the identity of the secondary lender or the relevant terms of the finance and the fact that many Relevant Investors will impart diminished credibility to the purchaser stemming from the knowledge of the Big Star PSA funding shortfall. 410 Mr Bowers considered that viewed in isolation, knowledge of the Funding Email might see some Relevant Investors increase their estimated likelihood of the Northern Star PSA completing. However, combined with the knowledge of the absence of due diligence as to the financial capacity of Wade Energy to complete, the unverified affirmation of secondary finance approval by Wade Energy in relation to the Northern Star PSA assumes a vastly diminished significance. Therefore, in Mr Bowers' view the cumulative knowledge of the identity of the purchaser, the absence of due diligence or verification of financial capacity to meet its obligations and the Funding Email would see many Relevant Investors significantly lower the estimated likelihood of the Northern Star PSA completing relative to their estimates in the absence of such knowledge. 411 Mr Bowers concluded that the cumulative knowledge of the identity of the purchaser, the absence of due diligence or verification of financial capacity to meet its obligations and the Funding Email would serve to significantly negatively impact on the estimates of Relevant Investors in relation to the likelihood of both PSAs completing. The magnitude of the impact is different between the two agreements (greater for Big Star) but is still a significantly negative one for both PSAs in aggregate. 412 It then follows that, in Mr Bowers' opinion, the cumulative knowledge of those matters would have been likely to influence Relevant Investors in deciding whether to acquire or dispose of Antares shares during the Relevant Period.

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Mr Cruickshank's challenges to Mr Bowers' evidence 416 Mr Cruickshank challenges Mr Bowers' evidence on a number of grounds. 417 First, Mr Cruickshank denies that Mr Bowers has the requisite specialised knowledge. He contends that Mr Bowers does not have relevant expertise because he does not have practical experience in buying or selling shares, and nor has he studied in the field of market behaviour. In relation to practical experience, Mr Cruickshank describes Mr Bowers' experience as confined to acting as an analyst and contends that he does not have sufficient contact with those who buy or sell shares to be in a position to give expert evidence about their behaviour. 418 In support of his contention, Mr Cruickshank points to cases in which he asserts the witness's expertise was based on their experience in buying and selling shares: ASIC v Fortescue (TJ); ASIC v Vocation; Grant-Taylor v Babcock & Brown Limited (in liq) [2015] FCA 149 (Grant-Taylor v Babcock & Brown (TJ)); see also R v Fysh. 419 In ASIC v Vocation the expert (Mr Sisson) was a share analyst and share portfolio manager and the Managing Director and Chief Investment Officer of BEM, an institutional investor whose clients were generally superannuation funds and managed investment schemes. Mr Sisson referred in his report to other categories of investors, being private investors, speculators and day traders and hedge funds. It was agreed by the parties that his evidence was admissible evidence of 'a person who had expertise in the behaviour of institutional investors' but not with respect to the other categories of investors: at [534]. It was not said that Mr Sisson was accepted to be 'a person who had expertise in the behaviour of institutional investors' because or solely because he was an actual investor and the case is not authority for such a proposition. 420 Similarly, in ASIC v Fortescue (TJ), Mr Sisson and another witness, Mr Keene, were accepted to be qualified experts. The Court found that they were experienced as common investors and had actual experience in making decisions. That finding was based on acceptance of a submission from ASIC: [482] … [ASIC submitted that] the question of influence for the purposes of s 677 involves primarily a commonsense test for the Court upon a consideration of the primary facts although assistance may be derived from experts who professionally buy and sell shares in large tranches and make investment decisions of the kind contemplated by s 677. I accept this submission. 421 It was not suggested that it was only an expert who was qualified in that manner who could provide such assistance. The Court rejected as sufficiently qualified for the purpose of s 677 a third expert, who was 'an expert in business statistics and capital markets research, with extensive publications relevantly in market statistics'. The person did not have experience in buying and selling shares. Again, that rejection does not provide a sound footing for the proposition that only those persons who have experience in buying and selling shares could qualify as an expert: see [504]. 422 In Grant-Taylor v Babcock & Brown (TJ) evidence as to the effect of disclosure of information on the price of shares was given by two experts. The first (for the plaintiff) was a professor of finance at Macquarie University, the author of numerous articles on market behaviour and several well-known textbooks: at [16]. The second (for the defendants) was 'an expert in corporate finance and valuations'. He had previously been a partner in a prominent firm of accountants in the area of corporate finance for many years: at [17]. 423 The qualifications of those experts referred to in Grant-Taylor v Babcock & Brown (TJ) do not disclose personal experience in buying and selling shares. Put differently, the Court did not suggest that they had such experience and that it was an integer of their qualification to give the relevant evidence. 424 There are other examples where experts have been accepted as having the requisite specialised knowledge for the purpose of s 674 and where their qualifications described in the reasons do not refer to personal experience in buying and selling shares. In such cases, the Court has not referred to any requirement that a history of personal experience in buying and selling securities was a requisite integer of the requisite specialised knowledge. 425 For example, in TPT Patrol v Myer Holdings Beach J noted that the expert, Mr Molony, had experience as an equity capital markets advisor to institutional investors and had worked in the securities industry and financial markets since 1995, principally on equity capital market related matters. He also had considerable experience in investments and financial markets in Australian and international markets, including holding positions at Credit Suisse, Goldman Sachs, JBWere and Transurban. In those positions his focus was originating equity financings for corporations, private equity firms, infrastructure funds and governments. He also managed relationships with institutional investors and external wealth advisory firms: at [655]-[658]. Justice Beach concluded that: [659] I found his evidence on questions of materiality to be helpful, although there were some limitations on the value of some of his evidence given that he had not been a research analyst and did not have direct experience on such matters. 426 I also note that in Noske v The Queen, Hall J recited Mr Bowers' experience (which was relevantly the same at the time as summarised above). His expertise was not challenged by the defence, but Hall J said as follows: [24] The objection, simply put, was that it would not be possible for Mr Bowers to say why particular people buy or sell shares or what information has influenced them. That is true, but it is hardly to the point. The question is not what caused any particular person to buy or sell shares but whether the information in this case is of a nature as to be likely to influence people who form the class who commonly deal in shares of this type. That is a matter in respect of which Mr Bowers appears to be well qualified to give his opinion. 427 In my view the experience of any particular person purporting to give expert evidence must be looked at carefully and as a whole. Similarly to Mr Molony in TPT Patrol v Myer Holdings, Mr Bowers has experience acting as an advisor to investors. Without repeating all of his qualifications, he has experience as an analyst, including with respect to mining companies and as a mining equity analyst. He has research experience. He has some sales experience ('as a specialist in Australian mining research sales', and 'one year in a specialist mining equities sales and trading role'), valuation experience, and experience specialising in advising corporate clients on likely investor reaction to new information. He has had direct interaction with institutional and retail investors. Some of that interaction is also described in excerpts from Mr Bowers' evidence below. 428 Having regard to his range of experience over a considerable time period and the nature of his specialised roles, I consider Mr Bowers is eminently qualified to give the evidence that he has given. I reject the challenge to his expertise. 429 Second, Mr Cruickshank asserts that even if Mr Bowers does possess such specialised knowledge, his opinions were not wholly or substantially based on such specialised knowledge. For example, it was suggested that the level of detail of parts of his report was such that it indicated his personal view on how he would assess the value of shares in Antares, applying his skill and technical knowledge. This criticism was directed primarily at Mr Bowers' response to the fourth question. 430 There is no doubt that Mr Bowers' report is detailed and raised many matters that might have been considered by Relevant Investors and inferences that may have been drawn by them. Mr Bowers' evidence of the list of factors that investors might take into account as relevant to completion risks and the different views that might be formed is an example of this. However, it is artificial to read the report as suggesting that all Relevant Investors would have considered all of those issues or that they all would have approached the task of assessing a current risk-weighted valuation with the same level of detail. It was not necessary for Mr Bowers to establish that was the case, having regard to the composition of the class of investors. 431 It was put to Mr Bowers that he had been willing to ascribe views or interpretations that are of very considerable detail. There was the following exchange: MR DAVIES SC: Now, you have been prepared to opine as to what would be drawn from a whole range of materials in very considerable detail. This is a very considerable - these are very detailed conclusions, are they not? MR BOWERS: I would like to think they're considered in what is a significant amount of detail in terms of the context of the situation. MR DAVIES SC: No. In terms of the views to be held by relevant investors as a class, do you accept that in this part of the report and indeed elsewhere, you have been prepared to ascribe views or interpretations that are of very considerable detail? MR BOWERS: I've been able - I've been willing to ascribe interpretations that describe the breadth of the potential interpretation. And, in fact, I believe that I've been very balanced in doing that. … MR DAVIES SC: All right. And isn't this section of your report - or isn't this approach - isn't that approach replete throughout these highly detailed - highly detailed assertions about what relevant investors thought and the state of mind they have? MR BOWERS: My belief is this section, as you've - as you've sort of described, gives a balance to counter the range of different views that relevant investors might have taken out of what was a - a situation in terms of the relevant ASX releases that required a - quite a significant amount of deciphering, if I can place a ..... MR DAVIES SC: A significant amount of deciphering, indeed, and this is deciphering - the way in which you've approached this task, is it not, Mr Bowers - is to approach it as if the relevant investors had at least the same level of finance sophistication as you have? MR BOWERS: No. I disagree with that, and whilst it's not something that drives - or has driven the views that I've adopted as to how relevant investors would perceive and understand these announcements. You only have to review the HotCopper material that was given to see the wide array of different perceptions and efforts of deciphering that at least some members of the class of relevant investors engaged in through the relevant time period. … MR DAVIES SC: So the HotCopper material, you say, is not something that has informed your views? MR BOWERS: No, no, only insofar as I've had review of it, but the conclusions that people may or may not reach in relation to this is based on my experience. 432 It was also suggested, for example, that Mr Bowers reviewed certain corporate documents and expressed his own analytical views on them. Mr Bowers disagreed, stating that the vast majority of what he said about those documents: … stands as what would appear to be very self-evident from the material that precedes it. 433 It was suggested that Mr Bowers' process of reasoning with regard to, for example, the assessment of the relevance of the lack of a deposit was more detailed than that which would be undertaken by Relevant Investors. Mr Bowers explained that in the context of the sale price under the PSAs ('So that's ten times your money if all of that happens to be coming in') many Relevant Investors would pay detailed attention. He said: A lot of people pay a close amount of attention to analysing those situations. Many relevant investors, when faced with that potential opportunity, would look at the situation very closely, including things like track record, recent history, the specifics of what it disclosed, the specific nature of the transaction and the like. So it is my strong view that, in particular, in these situations, people are very focused on the specific dynamics because the size of the prize is very large, in relative sense. 434 There are many other examples where Mr Bowers was able to explain rationally why the process of reasoning included assessing different views in some detail. The following evidence, on a more general level, is important in explaining his approach: MR DAVIES SC: You descend, in this report, generally, to a level of detail that you couldn't possibly ascribe to the class of persons that you have described as relevant investors, don't you MR BOWERS: Where I've highlighted particular views that range, I've then given what I believe is the balanced perspective on how those - those different views are going to interact and I've clearly drawn conclusions here in relation to, you know, what the - the likely average outcome is going to be. I … believe, with my professional background, I'm … quite well placed to do that. 435 I reject the submission that Mr Bowers' evidence was diminished in value by its detail. The detail was in context. In circumstances where he was considering the approach of investors in a class which inevitably comprised investors with different characteristics and levels of expertise, it was appropriate to consider the range of views that might be formed. That is the course he undertook. 436 Further, Mr Bowers' evidence is replete with references that indicate a link between his specialised knowledge and experience, and the matters on which he is offering an opinion. Examples include his reference to his experience of witnessing discussions with stock brokers (see transcript excerpt at [442] below). 437 By way of further example, in the context of certain evidence about a shareholder's motivation to sell if they consider a security is currently overvalued, it was put to Mr Bowers that he based that view on an assumption as to behaviour. Mr Bowers responded by saying that: I wouldn't say it's an assumed behaviour, sorry, because I've observed this very behaviour many, many times. So I've had many discussions with investors about specifically what they value a stock at and why they sold that stock, for example, and also why they purchased that stock. 438 Mr Cruickshank describes as 'wholly inadequate' Mr Bowers' confirmation in his report that the opinions he expressed in the report are based wholly or substantially on specialised knowledge arising from his training, study or experience. Such confirmation was provided by Mr Bowers in compliance with Part 5.2 of the Court's Practice Note GPN-EXPT. Mr Bowers did more than simply provide that important confirmation. A proper reading of his report indicates that he has drawn on his experiences and specialised knowledge in the field in order to provide the opinions he has given. The detail in the report indicates the level of his knowledge and in my view he has taken care to explain the manner in which he has taken into account matters such as his personal experiences of investor behaviour in assessing the different views that may have been formed by those investors (and not by him personally) about those various factors. When allegations were put to Mr Bowers during cross-examination suggesting otherwise, he was direct and had no hesitation in explaining how he came to his opinion, explanations that revealed, to my mind, the application of his specialised knowledge. He was not required to provide source evidence for every aspect of his report: he was, after all, providing an opinion in accordance with s 79 of the Evidence Act. 439 Third, much of the cross-examination of Mr Bowers as to the second task concerned whether his focus on fundamentally-driven active investors meant that the class of Relevant Investors to which he referred was overly narrow, with many other Relevant Investors driven by different or other factors. 440 In my view, Mr Bowers carefully explained that in completing the second task, he was describing a framework for the decision-making of a great many of the class of Relevant Investors, and that in his opinion the framework involved, at its core, mispricing and with some reference to the fundamentals. He said that the vast majority of the class of Relevant Investors are people for whom the fundamentals occupy the 'predominant core of their decision-making'. He also acknowledged that some investors may have extremely detailed regard to the fundamentals whereas others may have extremely limited regard to them - but regardless, in his opinion they operate within the framework he has described. He readily acknowledged that there are some investors who might choose factors outside of the framework to drive their investment decision-making. However, his evidence was that those investors make up a very small proportion of the class of Relevant Investors. Mr Bowers readily acknowledged that it was not possible to identify how every specific investor in the class was going to behave, adding that such a task would be insurmountable. He acknowledged that there are investors at the margin - those who may hold stocks seemingly irrationally although they are priced higher than the value they accord to them - but that most people who hold a stock are of the belief that the value of the stock is higher than the price. When it was put to Mr Bowers that such statements were his mere assertion, he explained that he based his opinion on observations of a range of situations over a period of time, including conversations with various parties that were directly about those situations, and that his observations of all of those situations have culminated in his experience as to the framework he propounds. 441 Mr Bowers explained that although in his career he has predominantly come into contact with active investors who are driven by fundamentals, he also had cause over the past five or six years to pay attention to the 'fringe' that is not driven in that way (I note that the five or six years seems to correspond to the time during which Mr Bowers had operated his own practice as a boutique corporate and equity market consultant). 442 It was also put to Mr Bowers that to the extent Relevant Investors rely on information given to them by others, he cannot say that the decision-making process of those persons has anything to do with the fundamentals. It was put to him that he has no idea whether or not an investment blogger, stockbroker or analyst would be acting on fundamentals in coming to the view that is made available to the Relevant Investor, or in fact what factor might be driving what that person says. Mr Bowers maintained that in his opinion even in those cases, the decision that the Relevant Investor makes is based on the fundamentals, and therefore such investors still operate within the framework he described. The following exchange took place: MR DAVIES SC: You do not know whether a particular stockbroker - or any particular stockbroker has - is acting on fundamentals, do you?--- MR BOWERS: In a specific case, no. I think I can confidently say with my experience and expertise that the vast majority of conversations had between stockbrokers, analysts and investment bloggers with the parties who may take their advice relate to the fundamentals. MR DAVIES SC: Well, you do not know that stockbrokers are - you don't know as a matter of fact whether stockbrokers might be ringing up their clients because they need to make a sale. They need to make sales every day, don't they? MR BOWERS: They do, yes. MR DAVIES SC: You are unable to say? MR BOWERS: … To clarify, I've sat in a room with retail stockers, with institutional salespeople. I mean, I've spent a large amount of my professional existence listening to these conversations and engaging in them myself. So - - - MR DAVIES SC: Well - - -? MR BOWERS: I can only tell you that the vast majority of those conversations pertain to the fundamentals. These - these people are professional advice-givers giving … in some cases to professional investors, in some cases to relatively unsophisticated investors, but the reason they're getting paid is to provide advice on things that these people think is important, like, say, fundamentals that they might not have as much confidence on interpreting [themselves] or, as I've highlighted here, particularly in quite technical industries. MR DAVIES SC: Well, you see, you have no knowledge of what motivates a stockbroker to tell someone to buy or sell something, do you? You might hear what a stockbroker says in the time that you were a trader yourself or had a trading sales role. You may have heard what stockbrokers say? MR BOWERS: Yes. MR DAVIES SC: But you don't know what drives or what influences a particular stockbroker to say a particular thing on a particular day, do you? MR BOWERS: One specific stockbroker? Absolutely not, no. MR DAVIES SC: Or stockbrokers generally? MR BOWERS: No. Stockbrokers generally I can because stockbrokers who don't provide advice around this framework of trying to buy low and sell high and vice versa, they don't - they don't last in their job. People stop taking advice from them. 443 Mr Bowers' evidence under cross-examination as to the general application of the framework by a large number of Relevant Investors was consistent with his report. The group of 'fundamentally-driven active Relevant Investors' within the class was not confined, but included investors who might conduct inquiries and investigations at varying levels of details with varying degrees of sophistication and also included those who might conduct very little consideration of share value themselves, but might rely on information provided by third parties who are similarly fundamentally-driven. 444 Finally, I note that much was made in Mr Cruickshank's submissions of the importance of the consideration of information in context. The importance of context can be accepted (as noted in ACCC v Vocation and the analysis of Jubilee Mines v Riley). Having regard to his evidence, I consider that Mr Bowers considered the Purchaser Identity Information and the Cumulative Information in context (see further below).

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Determination on materiality 445 I accept the expert evidence of Mr Bowers and I have given it significant weight. For the reasons I have given, I am not persuaded by Mr Cruickshank's submissions that I should reject it. Mr Cruickshank evinced no expert evidence that contradicted Mr Bowers. Nor did Mr Cruickshank seek to attack in any real sense the essence of whether the information was material: the focus of the criticism was on his qualifications, his application of specialised knowledge and the delineation of the class of Relevant Investors. The substance of Mr Bowers' evidence as to materiality of the particular information was not challenged. 446 Mr Bowers' description and assessment of the relevant class of Relevant Investors accords with legal principle: Grant-Taylor v Babcock & Brown (FC) at [115]. His explanation of the manner in which investors would assess completion risk and have regard to the significance of the sale price for Antares' main assets accords with the balancing of probabilities explained in Grant-Taylor v Babcock & Brown (FC) at [96] and as described by Nicholas J in ASIC v Vocation at [519]. Mr Bowers' opinion is that the relevant information if disclosed would be likely to influence a decision - not just 'might'. His evidence addressed the integers of s 674(2)(c) of the Corporations Act. 447 The manner in which he considered the impact of the information that was disclosed by the PSA Announcements, PSA Clarification Announcement and other publicly available information indicates that he considered the broader context in which he was obliged to assume that the information would have been disclosed, a course consistent with that described in Jubilee Mines v Riley and ASIC v Vocation. The re-setting of the convertible notes in a relatively short time frame was clearly a relevant matter to which he was entitled to have regard. Another example of Mr Bowers' cognisance of the relevance of context is seen in his consideration of references to the Macquarie Bank Facility. Mr Bowers did not ignore the reference to the facility but noted that there was no available information as to its terms or the use to which it could be applied, and also noted that Antares and its auditors did not appear to put any store in the availability of the facility, having regard to the financial position described in the half yearly report and the notes as to Antares' continuation as a going concern. 448 Mr Bowers' report is indeed detailed. However, in my view it is a clearly elucidated and persuasive explanation of the process undertaken by investors of ascertaining and synthesizing information relevant to their decision-making process. 449 The general explanations of an assessment of the fundamentals about a company, the assessment of the completion potential and risks of a significant deal and the search for mispricing were readily understandable. Mr Bowers' explanation as to how investors might make those assessments in the particular circumstances of Antares was also readily understandable. His hypothetical calculations that disclosed the expected range of influence of the PSA Announcements and PSA Clarification Announcement provided a reasoned basis for showing that many Relevant Investors would at the time have seen Antares shares as significantly undervalued, so that, absent further information, many shareholders would have been influenced to acquire shares or hold them. 450 Mr Bowers' assessment of the relevance of the Purchaser Identity Information highlights that disclosure of the name of a purchaser empowers investors in their decision-making process. There may or may not be a recognition factor. The absence of recognition of a name itself has the capacity to inform, as does the fact that there is an absence of publicly available information. His assessment of the relevance of such matters in the case of the identity of the purchaser under the PSAs is logical and persuasive. 451 I am therefore satisfied having regard to Mr Bowers' evidence that the Purchaser Identity Information was information that a reasonable person would expect to have a material effect on the price or value of Antares shares and that the statutory materiality test is satisfied. I am satisfied that the Purchaser Identity Information was material in that it would have been likely to influence persons who commonly invest in securities in deciding whether to acquire or dispose of Antares shares during the Relevant Period. 452 Turning to ASIC's case based on the Cumulative Information, it is important to note that Mr Bowers considered the hypothetical impact of disclosure of the information in a cumulative manner. For example, the relevance of whether or not there had been due diligence was heightened by the absence of knowledge of the identity of the purchaser. Mr Bowers carefully explained the reasons why in his view many Relevant Investors would have assumed that there had been a process of due diligence undertaken - the definite approaching settlement date; the executed PSAs; and the absence of any deposit or default terms. Mr Bowers was not challenged on the relevance of such matters and I accept his evidence. 453 So too the question of the impact of hypothetical disclosure of the facts reflected by the Funding Email were considered in the context of the non-disclosure of the other identified information. I agree with Mr Bowers that an inference is to be drawn, as I have addressed above, and the Funding Email reveals, that Wade Energy did not have all of its necessary finance in place for completion under the Big Star PSA as at 6 September 2015. Mr Bowers' explanation that such information would introduce an element of conditionality upon completion that is not otherwise exposed by the PSA Announcements is credible and logical. Having regard to the task of assessing the prospects of completion, a task that the vast majority of Relevant Investors would undertake in accordance with the framework as explained by Mr Bowers, the relevance of such information is readily apparent. It would introduce doubt about completion. 454 I am therefore satisfied having regard to Mr Bowers' evidence that the Cumulative Information was information that a reasonable person would expect to have a material effect on the price or value of Antares shares and that the statutory materiality test is satisfied. I am satisfied that the Cumulative Information was material in that it would have been likely to influence persons who commonly invest in securities in deciding whether to acquire or dispose of Antares shares during the Relevant Period.

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PART G - Involvement in contravention 457 Section 674(2A) provides that a person who is involved in a listed disclosing entity's contravention of subsection 674(2) contravenes this subsection. 458 Section 79 of the Corporations Act is relevant. It provides: Involvement in contraventions A person is involved in a contravention if, and only if, the person: (a) has aided, abetted, counselled or procured the contravention; or (b) has induced, whether by threats or promises or otherwise, the contravention; or (c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the contravention; or (d) has conspired with others to effect the contravention. 459 The cause of action pursued by ASIC as set out in its Concise Statement is that Mr Cruickshank by his acts or omissions was directly or indirectly knowingly concerned in the failure of Antares to disclose to the ASX each of the Purchaser Identity Information, the Absence of Independent Verification Information and the Incomplete Financing Approval Information at any time prior to 15 September 2015: that is, ASIC invokes s 79(c). The originating process refers to relief based on involvement in Antares' failure to disclose the Purchaser Identity Information and further, or in the alternative, relief based on involvement in Antares' failure to disclose the Cumulative Information. 460 Section 79(c) of the Corporations Act has been considered in the context of a contravention under s 674(2A) in two authorities: Australian Securities and Investments Commission, in the matter of Sino Australia Oil and Gas Limited (in liq) v Sino Australia Oil and Gas Limited (in liq) [2016] FCA 934 and ASIC v Vocation. Despite those authorities, the parties dispute the quality of the knowledge that must be proved for the purpose of s 674(2A), having regard to s 79(c). 461 ASIC contends that in the case of a contravention of s 674(2) of the Corporations Act, in order to contravene s 674(2A) and having regard to s 79, a person must be aware of the existence of the information to which it is alleged Listing Rule 3.1 applies and that such information was not generally available; and must know of the underlying facts from which the Court could infer that a reasonable person would have expected that the information would have been likely to influence an investor in making a decision whether to acquire or dispose of securities in Antares, if it had been generally available. 462 Mr Cruickshank contends that ASIC must prove that Mr Cruickshank had actual knowledge of the information, the fact the information was not generally available and that the information was information that a reasonable person would have expected, if it were generally available, to have had a material effect on Antares share price. 463 Before addressing the respective lines of authority relied upon by the parties, it is to be noted that s 79 may be invoked for the purpose of accessorial liability with respect to many other contraventions of the Corporations Act: for example, s 181 - s 183 (civil obligations); s 254J (obligations for redemption of shares); s 596AC (entering into agreements that avoid employee entitlements) and s 601FD (obligations on responsible entities). Its interpretation is to be undertaken having regard to its general application. 464 It should also be noted that s 79 is in similar terms to accessorial liability provisions in other legislation. For example, s 75B of the Trade Practices Act 1975 (Cth) is in virtually identical terms and has been considered on many occasions in the context of s 52 of that Act, which proscribed misleading or deceptive conduct: see Yorke v Lucas (1985) 158 CLR 661; Quinlivan v Australian Competition and Consumer Commission [2004] FCAFC 175; (2004) 160 FCR 1; and Propell National Valuers (WA) Pty Ltd v Australian Executor Trustees Limited [2012] FCAFC 31; (2012) 202 FCR 158. Section 75B of the Trade Practices Act has also been considered with respect to contraventions of s 45 of that Act, which proscribed making or giving effect to an arrangement having the purpose of and/or likely effect of substantially lessening competition: see Rural Press Limited v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53. 465 Section 5(1) of the National Consumer Credit Protection Act 2009 (Cth) is also to similar effect, and was considered in some detail in the recent decision of Australian Securities and Investment Commission v Rent 2 Own Cars Australia Pty Ltd [2020] FCA 1312 with respect to contraventions of s 32A, s 23(1), s 17(4) and s 17(5) of the National Credit Code, being Schedule 1 to the National Consumer Credit Protection Act 2009 (Cth). 466 Section 2GD(1) of the ASIC Act was in similar terms at the time of Medical Benefits Fund of Australia Limited v Cassidy [2003] FCAFC 289; (2003) 135 FCR 1, considered there with respect to the prohibition on misleading or deceptive conduct in providing financial services. See also (former) s 12GBA of the ASIC Act as discussed in ASIC v Rent 2 Own. The statutory regime under the ASIC Act has since been amended by the Treasury Laws Amendment (Strengthening Corporate and Financial Sector Penalties) Act 2019 (Cth). 467 In light of the similarity of the statutory provisions that provide for accessorial liability, the jurisprudence concerning those provisions assists in the interpretation of s 79(c) as it applies to s 674(2A). 468 The dispute between the parties as to the content of the requisite knowledge is founded on conflicting lines of authority, both commencing with the decision of the High Court in Yorke v Lucas. 469 Yorke v Lucas concerned the question of the state of Mr Lucas' knowledge that was to be established in order to find him liable as an accessory to a contended contravention by a company of s 52 of the Trade Practices Act by providing a misleading valuation in the context of a sale of business to Mr Yorke and others. The High Court considered the four limbs of the relevant definition of a person being 'involved' (which largely correspond with the four limbs of s 79), stating at 669-670 (Mason ACJ, Wilson, Deane and Dawson JJ): So far we have dealt only with par. (a) of s 75 b which refers to involvement of persons who are accessories. The appellants also rely upon par. (c) of the same section which extends the definition of a person involved to a person who has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention. There can be no question that a person cannot be knowingly concerned in a contravention unless he has knowledge of the essential facts constituting the contravention. It cannot, therefore, be suggested that Lucas falls within the first limb of par. (c) … … We have already indicated why par. (a) requires knowledge. Paragraph (b), which speaks of inducing a contravention by threats, promises or otherwise, and para (d), which speaks of conspiring with others to effect a contravention, both clearly require intent based upon knowledge and there is force, we think, in the observation made in the judgment of the Full Court below that there is: - '… no reason why Parliament would have intended that a section which renders natural persons liable for a contravention by a corporation should require some mental element or absence of innocence in every case to which it refers except one which itself requires in its first limb that the person was "knowingly" concerned in the contravention'. In our view, the proper construction of par. (c) requires a party to a contravention to be an intentional participant, the necessary intent being based upon knowledge of the essential elements of the contravention. (citations omitted) 470 In MBF v Cassidy it was held by Moore J (Mansfield J agreeing, Stone J dissenting on this point), that it is not necessary for an alleged accessory to a misleading or deceptive representation to have actual knowledge of the falsity of the representation. His Honour stated: [15] … in my opinion, liability as an accessory (in circumstances where the contravening conduct of the principal was making false or misleading representations) does not depend on an affirmative answer to the question whether the alleged accessory knew the representations were false or misleading. All that would be necessary would be for the accessory to know of the matters that enabled the representations to be characterised in that way. 471 That decision has been criticised. For example, most recently Greenwood J in ASIC v Rent 2 Own Cars questioned the reasoning in MBF v Cassidy, stating that: [246] … In order to be consistent with the principle in Yorke v Lucas, the position is that it is not necessary to show that the contended accessory knew that the conduct of the principal contravener attracted the legal conclusion or description of being misleading or deceptive conduct or conduct likely to mislead or deceive. What is necessary is that the contended accessory knew the essential fact, that is, that the representation was incorrect. (original emphasis) 472 In the year following the decision in MBF v Cassidy, the Full Court of this Court (Heerey, Sundberg and Dowsett JJ ) considered accessorial knowledge in Quinlivan v ACCC and made it plain (in the context of misleading misrepresentations) that an accessory must have actual knowledge of the falsity of the representations, stating: [8] The leading case on s 75B is Yorke v Lucas (1985) 158 CLR 661. The High Court held that the section imports the requirements of the criminal law. The person sought to be made liable must be shown to have had knowledge of the essential matters which go to make up the contravention. This contrasts with the rule as to primary liability under s 52 where liability may attach even though a corporation acts honestly and reasonably: Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 at 228, Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 197. [9] In Yorke itself the alleged accessory, an employee of a corporate respondent, was held not to be liable because although he was aware of the representations made - indeed they were made by him - he had no knowledge of their falsity. Therefore he could not be said to have intentionally participated in the contravention: 158 CLR at 668. 'Knowledge' means actual and not constructive knowledge: Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1 at 5. What is said in Yorke about s 75B is applicable to s 80(1)(c), (d), (e) and (f). [10] From the interaction of these provisions three conclusions emerge. First, s 51A does not detract from the Yorke principle that actual knowledge of the essential elements of the contravention is required if s 75B or s 80 is to apply. Where the contravening conduct involves misrepresentation, whether as to a future matter or not, this principle requires actual knowledge by the accessorial respondent of the falsity of the representation. This is an essential matter which must be alleged and proved: Su v Direct Flights International Pty Ltd [1999] FCA 78 at [38]; Fernandez v Glev Pty Ltd [2000] FCA 1859 at [18]. 473 The Full Court in Quinlivan v ACCC did not refer to MBF v Cassidy. 474 Some years later the Full Court in Propell v Australian Executor Trustees Limited (Collier, Stone and Gilmour JJ) followed MBF v Cassidy and did not cite Quinlivan v ACCC. 475 Quinlivan v ACCC, which made clear that an accessory must have actual knowledge of the falsity of a representation, has been cited and applied on numerous occasions. 476 For example, in Australian Competition and Consumer Commission v TF Woollam & Son Pty Ltd [2011] FCA 973; (2011) 196 FCR 212 Logan J stated: [120] Having regard to Quinlivan v Australian Competition and Consumer Commission (2004) 160 FCR 1 at [15], the ACCC must show as against Mr Bogiatzis, in respect of each of the representations that he had actual knowledge that: • the representation was made and • it was misleading or • Woollam had no reasonable grounds for making it. 477 In McGrath v HNSW Pty Limited [2014] FCA 165; (2015) 219 FCR 489 Cowdroy J, having provided a detailed review of the conflicting cases to that time, acknowledged that the High Court in Yorke v Lucas did not directly address whether actual knowledge of the falsity of a representation was necessary for the purpose of the equivalent to s 75B(c) of the Trade Practices Act. His Honour continued: [23] … I consider the approach adopted in Quinlivan, also being the approach of Stone J in MBF, to be correct. Similarly to the settled understanding of accessorial liability under s 75B(a), mere knowledge by a person that a statement was made, without more, cannot constitute that that person was 'knowingly concerned' in a breach of the TPA. Actual knowledge of the falsity or baselessness of the representation is a necessary element to prove accessorial liability to a contravention of s 52. It follows that I respectfully disagree with the reasons referred to above of the majority in MBF and Propell. 478 It is not necessary to review the many other relevant cases, as they are compiled and considered in each of McGrath v HNSW at [12]-[23]; ASIC v Vocation at [613]-[619]; and ASIC v Rent 2 Go at [214]-[273]. 479 Relevantly, however, in ASIC v Sino, Davies J applied s 79 in the context of a contravention of s 674(2A) of the Corporations Act. The relevant company had failed to disclose that a variation to the forecast profit was likely. Her Honour stated: [54] Thus, to find that Mr Shao was 'involved' in the company's contravention of s 674(2), the Court needs to be satisfied that Mr Shao: (i) knew that the company's profit had deteriorated in the second half of the 2013 calendar year; and (ii) knew that this was information which was not generally available and was information which a reasonable person would have expected, if it were generally available, to have had a material effect on the company's share price. Mr Shao in his defence admitted the second element and made partial admissions about the matters of which he had knowledge. 480 Having regard to the admissions that were apparently made in that case, the authorities were not addressed. 481 However, the issue arose again squarely in ASIC v Vocation, where Nicholas J considered the authorities, the legislative history and the explanatory memorandum (at [611]-[618]). His Honour rejected a submission by ASIC that knowledge of the underlying facts was sufficient to found liability under s 674(2A). In that case, the relevant persons said to be liable on the basis of involvement in a contravention by (relevantly) Vocation were a Mr Hutchinson and a Mr Dawkins. The information that it was said ought to have been disclosed to the market was defined as the 'Withholding and Suspension Information'. His Honour referred to ASIC's submissions as follows: [607] As previously stated, ASIC does not contend that either Mr Hutchinson or Mr Dawkins knew that the Withholding and Suspension Information was material in the relevant sense. However, ASIC contends that each of them knew the underlying facts from which the Court could infer that a reasonable person would have expected such information to be likely to influence an investor in making a decision whether to acquire or dispose of shares in Vocation. 482 His Honour concluded: [619] Given the weight of authority supporting the construction of s 79 of the Act adopted by Davies J in Sino, I do not think it is open to me to uphold ASIC's submission as to the proper construction of that section. Even if it were, I would reject ASIC's submission on the basis that it is incorrect. 483 It is apparent, having regard to the summary of ASIC's submission in the present case referred to at [461], that ASIC describes the matters that must be known for the purpose of s 674(2A) in the same manner in which it described them in ASIC v Vocation. Unsurprisingly, senior counsel for ASIC submits that the decision of Nicholas J on this point was wrong and I should not follow it. 484 The principles to be applied when such a submission is made are well established. A judge of this Court should follow an earlier decision of another judge unless of the view that it is plainly wrong: Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 at [75]. There is a judicial duty to do so: CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390 at [49]. It is a duty that arises unless a judge is 'convinced' that the earlier decision is plainly or clearly wrong: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [135]. The words 'plainly or clearly' bespeak the quality of the error or the level of conviction of error that must be perceived: Gett v Tabet [2009] NSWCA 76 at [283]. There must be a strong conviction that the earlier decision was erroneous and 'not merely the choice of an approach which was open, but no longer preferred' and the nature of the error must be able to be 'demonstrated with a degree of clarity by the application of correct legal analysis': at [294]. 485 Having reviewed the authorities since Yorke v Lucas and in particular the approach of the Full Court in Quinlivan v ACCC, and having regard to the fact that Quinlivan v ACCC has been applied on numerous occasions, I do not consider that Davies J in ASIC v Sino was plainly wrong in her Honour's interpretation of the manner in which s 79 applies with respect to s 674(2A). It follows that I do not consider Nicholas J in ASIC v Vocation was plainly wrong in accepting the approach of Davies J. 486 As noted in Quinlivan v ACCC, 'knowledge' means actual and not constructive knowledge. However, actual knowledge may be inferred from wilful blindness or from dishonest or deliberate ignorance. In Young Investments Group Pty Ltd v Mann [2012] FCAFC 107 the Full Court said (Emmett, Bennett and McKerracher JJ) said: [11] … For statutory breaches, it is well-established that, in order to be an accessory or to be knowingly involved in a contravention, a person must have intentionally participated, having knowledge of the essential matters constituting the contravention: see Yorke v Lucas. That is not imputed or constructive knowledge but, rather, actual knowledge. It would not usually be sufficient to establish a statutory breach to show that a person said to be an accessory to such a breach wilfully shut his or her eyes to the obvious: see Giorgianni v R (1985) 156 CLR 473. Actual knowledge of suspicious circumstances and a failure to make enquiry may be different: see Pereira v Director of Public Prosecutions (1988) 82 ALR 217 at 219 … 487 It therefore follows that in order to find that Mr Cruickshank was knowingly concerned in Antares' contravention, ASIC must prove that Mr Cruickshank intentionally participated having actual knowledge of the essential elements constituting the contravention. 488 ASIC's submissions vary in this case from those it made in Vocation because it asserts that if its principal submission on the construction of s 674(2A) and s 79(c) is rejected, then it remains open to the Court to infer that Mr Cruickshank knew of the likely impact of the information that was the subject of the PSA Announcements and knew of the materiality of the Purchaser Identity Information, the Incomplete Financing Approval Information and the Absence of Independent Verification Information or that he was at least wilfully blind to such materiality. As senior counsel for ASIC said, the ability of ASIC to prove wilful blindness or actual knowledge was circumscribed where there was no opportunity to put those propositions to Mr Cruickshank. 489 Accordingly, applying what was said in Sino, the Court must be satisfied that at a time contemporaneous with the contravention, Mr Cruickshank: (a) knew of the relevant information; (b) knew that the information was not generally available; and (c) knew that the information was information which a reasonable person would have expected, if it were generally available, to have had a material effect on the company's share price. 490 The statutory terms require that other matters also be taken into account. For example, as to the first limb, it is not enough having regard to the elements of the contravention and the wording of s 674(2)(b) that there be knowledge of the information. What the provision requires having regard to s 674(1) is that there be information that the Listing Rules required Antares to disclose to the ASX. That brings into consideration the exceptions in Listing Rule 3.1A. Further, s 674 and the meaning of 'material effect' is informed by s 677, so that the question may arise as to whether the information would, or would be likely to, influence persons who commonly invest in shares to acquire or dispose of shares. These textual matters are relevant. 491 Many of the authorities consider whether a person has been knowingly concerned in a contravention concerning statutory provisions where the testing of whether that person has the requisite knowledge is not necessarily a complicated task. For example, for misrepresentation cases, the question is generally whether or not the person knew the identified representation to be false or incorrect: examples include Yorke v Lucas. 492 The statutory text of s 674 governing the contravention in this case is more nuanced. 493 It is necessary to establish that Mr Cruickshank knew the particular information; knew that it was not information that was exempted from disclosure by Listing Rule 3.1A; that it was not generally available and that it was information that, in the context of what was being disclosed by way of the PSA Announcements and what was otherwise publicly available to the market, a reasonable person would have expected, if it were generally available, to have had a material effect on the company's share price, or would be likely to influence persons who commonly invest in shares to acquire or dispose of shares. 494 It is not necessary to prove that Mr Cruickshank knew that Antares was in breach of its continuous disclosure obligations, described in that manner. It is not necessary that he knew that the facts could be characterised in that manner. Nor must ASIC establish that Mr Cruickshank acted with the purpose or intent of influencing investors. 495 However, the essential elements of the contraventions are such that the bar may be high in a case such as this for ASIC to establish the requisite knowledge. 496 I have already found in Part F that Mr Cruickshank knew the identity of Wade Energy. Mr Cruickshank knew that there was a question mark over Wade Energy's financing, because he had received the Funding Email, replied to it and there was no evidence he had heard anything further to inform him to the contrary. I have found that Mr Cruickshank knew at the relevant time that the funding for Big Star was incomplete. I have also found that he knew about the absence of verification or due diligence. 497 However, Mr Cruickshank must be shown to have had actual knowledge that the information was of the nature that had to be disclosed, and this in turn raises a question as to knowledge of the materiality of the information. As set out above, I have rejected the attempts to fit the Purchaser Identity Information into the 3.1A exceptions. There is no convincing evidence that the information was confidential such that it was excluded from disclosure under Listing Rule 3.1A. However, the real difficulty for ASIC lies in the question of whether I can be satisfied to the relevant standard that Mr Cruickshank knew the relevant information if disclosed would have been material or influenced investors as required. 498 In order for ASIC to establish that a reasonable person would expect the information to have the requisite materiality, it was necessary to receive and accept the detailed evidence of Mr Bowers as to the manner in which the information would have impacted on the decision-making processes of the Relevant Investors. It might seem attractive to conclude that the technical nature of the expert evidence in this case - with its assessment of the class and the relevance of pieces of information to the identification of mispricing and the assessment of completion risks - reveals the difficulty of assessing the impact of information on the market such that a director should not be assumed to have such knowledge. 499 I do not consider, however, that Mr Cruickshank must have the detailed knowledge of the behaviour of investors that was displayed by Mr Bowers before liability of Antares could be found. Although in the context of a different type of contravention and a different type of market, the Full Court said this in Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213; (2002) 118 FCR 236 (not disturbed on appeal): [163] It was not, in our view, necessary for the primary Judge to find that Mr McAuliffe and Mr Law knew and appreciated that the purpose or effect of the arrangement was substantially to reduce competition in the market ultimately identified in the judgment. The definition of the market is a mixed question of fact and law involving sophisticated economic and legal concepts. It is not to be supposed that accessory liability is to depend on issues that business people are unlikely to address and, in any event, often cannot be resolved without detailed expert evidence and fine legal analysis. In the present case, the findings and the evidence amply support the conclusion that Mr Law and Mr McAuliffe had actual knowledge of the essential elements of the contraventions by Rural Press and Bridge Printing of s 45(2)(a)(ii) and s 45(2)(b)(ii) of the TP Act. 500 I take into account that Mr Cruickshank was the central player in the events relating to these proceedings. As the Chairman and Chief Executive Officer of a listed company he is expected and assumed to have knowledge of the company's business and finances. Based on its 2014 published Annual Report, Mr Cruickshank has a commerce degree, a graduate diploma in applied finance, a certificate relating to 'Advance Investor Relations' and is a fellow of the Australian Institute of Company Directors. He has over 20 years' commercial experience 'in commercial banking and equity markets'. He was at the time of the Annual Report a member of Antares' audit and compliance committee, its remuneration committee and its nomination committee. 501 As Mr Clohessy said, Mr Cruickshank had responsibility for the preparation of Antares' ASX announcements. He can be expected to have some general knowledge of the composition of the current shareholder base. He can be expected to have some knowledge of the type of information about the company he runs that is relevant to investors. There was evidence referred to by Mr Bowers that Antares had previously failed to disclose to the ASX the name of a purchaser under a sale agreement, although by a later announcement it disclosed reasons (based on alleged confidentiality) and said it 'withdrew' from the agreement. Mr Smith also said in a meeting with the ASX that Antares had 'done it before', which I take to mean Antares had previously withheld the identity of a purported purchaser from the ASX. There was also evidence that Antares had previously announced the name of a purchaser under a sale agreement simultaneously with the disclosure of completion of a deal (the deal with Breitburn). Mr Cruickshank can be expected based on such experiences and decisions to have considered the relevance of purchaser identity to the market's perception of risk of completion. 502 However, it must be remembered that potential relevance is not enough to establish materiality. Section 677 refers to information that would or would be likely to influence persons. Further, some information might clearly and unquestionably require disclosure. An obvious example would be the incurring of an unexpected and significant liability which impacts on solvency. Other information may be more obscure, or its effect on the company more difficult to anticipate. 503 In this case I am not satisfied that I can properly infer to the requisite level of satisfaction, having regard to the nature and seriousness of the cause of action, that Mr Cruickshank had actual knowledge that the information (independently or cumulatively as pleaded) was such that a reasonable person would expect it to be material in that it would or was likely to influence investors in deciding whether to acquire or dispose of Antares shares. Objectively he should have known or made proper inquiries relating to materiality - but that is not the test for actual knowledge. The assessment of materiality of the information was not without some degree of subtlety in this case, as Mr Bowers' evidence indicates, having regard to its particular nature. For example, it required some consideration of the impact of only partial disclosure of information about the purchaser ('private equity purchaser'). It required some consideration of the interconnectedness of the question of identity and the absence of conditions precedent. An argument remains open that Mr Cruickshank did not recognise the objective force of what Mr Bowers put as to the materiality of the information. Nor am I satisfied that there was wilful blindness on Mr Cruickshank's part: the fact that the PSA Announcements were made and revised suggests at least some thought was given to the content of disclosure, and the communications passing between Mr Smith and Mr Cruickshank indicate he remained involved in the process and did not improperly delegate responsibility to others. 504 Therefore, although the decision has not been without difficulty, I have determined that the s 674(2A) claim against Mr Cruickshank is not made out. 505 I should briefly note two matters. First, although in ASIC v Sino liability was established under s 674(2A) based on admissions (as was also the case in Australian Securities and Investment Commission, in the matter of Padbury Mining Limited v Padbury Mining Ltd [2016] FCA 990), it is not the case that there must be admissions in order to establish liability. Second, the fact that a director elects not to give evidence does not mean that it will necessarily be difficult to establish liability for a s 674(2A) case. Whether or not liability is established where proof of actual knowledge is required will depend upon the circumstances of each case. 506 For completeness, I add that had I found that Mr Cruickshank was liable under s 674(2A), I would not have upheld his invocation of the defence in s 674(2B). 507 In particular, I would not have been satisfied that he took all steps that were reasonable in the circumstances to ensure Antares complied with its obligations under s 674(2). There is no evidence that Mr Cruickshank took any such steps. Nor would I have found that Mr Cruickshank believed on reasonable grounds that Antares was complying with its obligations. 508 In the absence of evidence from Mr Cruickshank it is difficult to identify any basis for a s 674(2B) defence. I have not ignored the assertions made in Mr Smith's meeting with the ASX or the written submission he provided to the ASX dated 14 September 2015 to the effect that Antares would not disclose the name of the purchaser for reasons of confidentiality and because of the risk that Wade Energy would walk away. I have already found that there is an absence of probative evidence supporting the assertions in the submission. I would add that those statements to the ASX were made by Mr Smith after the PSA Announcements were released to the market and only after the issue was raised by the ASX. There is no suggestion that Mr Cruickshank or Antares took any legal advice about the position with respect to the alleged confidentiality obligations and the terms of the Listing Rules and Guidance Note 8, and no other evidence that persuades me that Mr Cruickshank genuinely believed on any reasonable grounds that Antares was subject to a confidentiality agreement or requirement such that there was no obligation to disclose the relevant information. Further, based on the submission of 14 September 2015, Mr Smith and Mr Cruickshank seem to have had regard only to certain parts of Guidance Note 8 for the purpose of their submission to the ASX: see also the parts of Guidance Note 8 that I have referred to at [63] above and the note to Listing Rule 3.1 that refers to confidentiality agreements at [58] above.

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Relevant principles 509 Section 180(1) of the Corporations Act provides: Care and diligence - civil obligation only Care and diligence - directors and other officers (1) A director or other officer of a corporation must exercise their powers and discharge their duties with the degree of care and diligence that a reasonable person would exercise if they: (a) were a director or officer of a corporation in the corporation's circumstances; and (b) occupied the office held by, and had the same responsibilities within the corporation as, the director or officer. Note: This subsection is a civil penalty provision (see section 1317E). 510 The conduct of a director contributing to a company's breach of the Corporations Act which exposes the company to prejudice (including actual or potential corporate exposure to civil penalties or other liability under the Corporations Act) may give rise to breaches of s 180(1). 511 The duty arising under s 180 reflects what is objectively expected of a person appointed to the office held by the second defendant. The question is what an ordinary person, with the knowledge and experience of the second defendant, might be expected to have done in the circumstances. 512 Liability of a director may be triggered where a director's failure to exercise reasonable care and diligence has caused or allowed the company to contravene the Corporations Act, at least where it was foreseeable that such contravention might harm the company's interests: Australian Securities and Investments Commission v Mariner Corporation Limited [2015] FCA 589; (2015) 241 FCR 502 at [448]-[452] (Beach J); cited in Australian Securities and Investments Commission v Avestra Asset Management Limited [2017] FCA 497 at [214]-[216]; and cited by Nicholas J in ASIC v Vocation at [732]. 513 Determining whether a director has breached the duty imposed by s 180(1) requires balancing the foreseeable risk of harm to the company (including the magnitude of the risk and the probability of its occurrence) against the potential benefits that could reasonably be expected to accrue to the company from the conduct in question, along with the expense and difficulty of taking alleviating action and any conflicting responsibilities of a defendant: Vrisakis v Australian Securities Commission (1993) 9 WAR 395 at 450 (Ipp J); and Australian Securities and Investments Commission v Maxwell [2006] NSWSC 1052 at [102] (Brereton J), cited by Nicholas J in ASIC v Vocation at [733]. 514 A company's failure to comply with its obligations under s 674(2) of the Corporations Act, however, cannot be justified on the basis that compliance might lead to a loss of a commercial opportunity that would otherwise have been favourable to the company: ASIC v Fortescue (FC) at [197]-[199] (not relevantly disturbed on appeal).

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Breach of duty by Mr Cruickshank 515 ASIC contends that by reason of his respective duties and responsibilities, knowledge and conduct, Mr Cruickshank contravened s 180(1) of the Corporations Act in causing or otherwise permitting Antares to fail to disclose the Purchaser Identity Information, the Incomplete Financing Approval Information and the Absence of Independent Verification Information to the ASX at any time during the Relevant Period. 516 ASIC v Vocation provides an example of circumstances where a director was found liable under s 180(1) for failing to exercise the requisite degree of care and diligence in assessing whether information ought to have been disclosed to the ASX (at, for example [790]-[791]). 517 Liability does not turn on establishing actual knowledge that the information was likely to influence investors. 518 Mr Cruickshank contends that ASIC could not succeed in this part of its claim because expert evidence is required as to the standard of care of a reasonable director. That submission does not reflect the authorities. There are examples where expert evidence has been relied upon to assist a court in determining the standards to be applied to a director: see, for example Australian Securities and Investments Commission v Vines [2005] NSWSC 738, where the Court drew upon evidence of an experienced chief financial officer; and Australian Securities and Investments Commission v Rich [2009] NSWSC 1229, where the Court drew upon evidence of experienced company directors as to the roles of a managing director and a finance director of a publicly listed company. However, that there are examples where expert evidence has been relied upon does not direct that such evidence must always be obtained and there are instances where it has not been obtained and a breach has been established (ASIC v Vocation being an example). 519 Mr Cruickshank's responsibilities and role have already been described. There was no suggestion he delegated responsibility with respect to disclosure to the ASX to anyone else. He drafted the PSA Announcements and I have found that he had knowledge of the draft PSA Clarification Announcement and the intention to release it to the market. Mr Cruickshank's signature was affixed to each of those announcements and to the 2015 half yearly report. 520 Considering the position as at the start of the Relevant Period, Mr Cruickshank can be taken to have known (at least) the terms of the PSAs which he signed, that the main assets of Antares were the subject of those agreements and the financial position of the company including the liabilities by way of the convertible notes. Based on the 2015 half yearly report, Mr Cruickshank can be taken to have known the significance of the completion of the PSAs to the ongoing financial position of the company and the material uncertainty identified by Ernst & Young as auditors. I am satisfied that, as a member of Antares' audit and compliance committee, and having regard to his responsibility for ASX announcements, he knew of the continuous disclosure obligations under the Listing Rules. He knew or ought to have known about Listing Rule 3.1 and Guidance Note 8. He knew of the Purchaser Identity Information, the Incomplete Financing Approval Information and the Absence of Independent Verification Information, as I have found in Part F, and I am satisfied that he knew such information was not generally available. 521 More particularly, I am satisfied that Mr Cruickshank knew that unless that information was exempt from disclosure under an exception to Listing Rule 3.1, then Antares was obliged to disclose it if a reasonable person would expect the information to have a material effect on the price or value of share in Antares. I am also satisfied that, based on his experience, Mr Cruickshank would have appreciated that any failure by Antares to comply with its continuous disclosure obligations could expose it to financial harm including by way of liability for a penalty. 522 I have found that the Purchaser Identity Information was not exempt from disclosure under Listing Rule 3.1A. In particular the evidence does not establish that there was a confidentiality term, or 'underlying requirement' that Wade Energy's identity not be disclosed. If Mr Cruickshank assumed there was such a term he would appear to have lacked a reasonable foundation for the assumption. A person in Mr Cruickshank's position exercising reasonable care and diligence would have considered the express terms of the PSAs, would have appreciated the absence of any express confidentially term and, if uncertain, would have sought legal advice as to whether and how Antares was bound by any such obligation. There is no suggestion advice was sought. A person in Mr Cruickshank's position exercising reasonable care and diligence would have reviewed Listing Rule 3.1A and Guidance Note 8 and appreciated that the position of the ASX was that a confidentiality agreement does not prevent an entity from complying with its obligations under the Listing Rules and that sufficient detail should be provided in any announcement to enable investors to understand the ramifications of the information and to assess its impact on the price or value of shares. A person in Mr Cruickshank's position exercising reasonable care and diligence would not have come to the view that the information was exempt from disclosure based on alleged confidentiality. Furthermore there would have been no reasonable grounds for proceeding on the basis of any assumption that the ASX accepted that the information was confidential and exempt from disclosure. 523 Clearly Mr Cruickshank knew the nature of the transactional activity by way of the PSAs was such that it was likely to influence investors. Otherwise the PSA Announcements would not have been made. I am satisfied that a person in Mr Cruickshank's position exercising reasonable care and diligence would have considered the impact of the PSA Announcements and the likely reactions of investors in context. That is, they would have taken into account (at least) the significant quantum of the purchase price; the absence of any reference to conditions precedent and that the information disclosed bore the hallmarks of a binding agreement. It is against that backdrop that the question of materiality of additional information would have been assessed. 524 I am satisfied that a person in Mr Cruickshank's position exercising reasonable care and diligence would have recognised that investors would have sought to assess the prospect of the sale of the assets completing, and that disclosure of the name of Wade Energy would have equipped them to research that entity and take into account any information (including a lack of available information) in making their assessment. I am satisfied that such a person would have appreciated that investors might be more cautious about the prospects of completion in a scenario where there was an absence of publicly available information about the purchaser. That caution would have affected the manner in which they valued the shares. Accordingly such information would have been likely to influence investors in deciding whether to hold or sell their shares or whether to acquire new shares, and I am satisfied that a person in Mr Cruickshank's position exercising reasonable care and diligence would have appreciated that to be the case. 525 I am also satisfied that a person in Mr Cruickshank's position exercising reasonable care and diligence would have recognised that the Cumulative Information would have been likely to influence investors in deciding whether to hold or sell their shares or whether to acquire new shares. The information that there had been a lack of due diligence about Wade Energy's capacity to complete and the information about the incomplete financing of the Big Star transaction at the time of the First PSA Announcement were both pieces of information that were objectively relevant to the assessment by an investor of the risk of completion. If Mr Cruickshank failed to understand the significance of that information, it would seem he failed to understand the apparent risks to Antares as vendor that the proposed purchaser might default under the PSAs, or failed to consider the ramifications if finance were not available. A reasonable person in Mr Cruickshank's position, absent some other comfort (as to which there was no evidence), would have been concerned about the indication that finance was not in place for Big Star and would have carefully considered and understood that such information was material to the market. 526 Mr Bowers' evidence explained the objective force of the Cumulative Information and its impact on the assessment of value and completion risk. In my view, a reasonable person in Mr Cruickshank's position would have appreciated that an investor may be more nervous or cautious about the prospect of completion and, it follows, the receipt of the settlement proceeds, if they were provided with the Cumulative Information. Their perception of risk would be affected. Therefore, it follows, such a person would have appreciated that the Cumulative Information was of a nature that would or was likely to influence investors in deciding whether to acquire or dispose of shares. 527 Nor would such a person have understood the responses and inquiries made by the ASX during the balance of the Relevant Period to have indicated that the disclosure by the PSA Clarification Announcement met the concerns as to disclosure about the identity of the purchaser or due diligence raised by the ASX. 528 Therefore, I am satisfied to the requisite standard that Mr Cruickshank failed to exercise the degree of care and diligence that a reasonable person in his position would have exercised in his consideration of whether Antares was required to disclose the Purchaser Identity Information or, further, the Cumulative Information and so in causing or otherwise permitting Antares to fail to disclose the information to the ASX.

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Section 180(2) defence (business judgment rule) 529 In his Concise Response, Mr Cruickshank sought to rely on s 180(2) of the Corporations Act by way of defence to the claim under s 180(1), although his submissions did not assist as to how it was said to operate in Mr Cruickshank's favour (or at all). Regardless, I do not consider the defence is available to Mr Cruickshank. 530 In ASIC v Fortescue (FC), Keane CJ said the following: [197] Forrest bore the onus of proving that he made a judgment in good faith and for a proper purpose and that his shareholding in FMG was not a material personal interest in the subject matter of that judgment. The absence of evidence from Forrest makes it difficult to see how Forrest could discharge the onus which he bore to establish these elements of this defence. This difficulty apart, the decision not to disclose the true effect of the agreements cannot be described as 'business judgment' at all. A decision not to make accurate disclosure of the terms of a major contract is not a decision related to the 'business operations' of the corporation. Rather it is a decision related to compliance with the requirements of the Act. [198] It is not an intention lightly to be attributed to the legislature that a director of a company might lawfully decide, as a matter of business judgment, that a corporation under his or her direction should not comply with a requirement of the Act. Section 180(3) of the Act defines 'business judgment' to mean a judgment 'to take or not take action in respect of a matter relevant to the business operations of the corporation'. In the Explanatory Memorandum to the Corporate Law Economic Reform Program Bill 1998 (para 6.8) it is said that: The operation of the business judgment rule will be confined to cases involving decision making about the ordinary business operations of the company. For example, the decision to undertake a particular kind of business activity promoted in a prospectus would be the kind of business judgment to which the proposed rule may apply. However, compliance (or otherwise) with the prospectus requirements imposed by the Law would not be a decision to which the proposed rule could apply. 531 Applying this statement in ASIC v Vocation, Nicholas J considered that a decision by a director to cause or permit Vocation not to disclose certain information was not business judgment in the relevant sense. His Honour said that such a decision did not have any effect, and was not intended to have any effect, on any aspect of Vocation's existing business operations or any matter relevant to such operations. I consider the same reasoning applies in the case of Mr Cruickshank's decision as to non-disclosure of the relevant information in this case. Mr Cruickshank's decision was not about the ordinary business operations of Antares, but about compliance and whether information as to major contracts entered into by Antares should be disclosed to the market. 532 Further and in any event, there is no evidence of the exercise of reasonable care and diligence by Mr Cruickshank in seeking to avoid a contravention by Antares of the continuous disclosure obligations. Nor am I satisfied that Mr Cruickshank informed himself appropriately about the question of disclosure or that he reasonably believed he had done so. He has provided no evidence to that effect. I refer to the findings at [507]-[508] above. I am unable to find that a defence is made out under s 180(2).

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Common usage 10 Mr Clohessy's evidence appears to be founded on what he was told by the second defendant and Mr Shoemaker, as he was not personally involved in negotiations. There is no specific evidence as to what in particular he was told about transactions generally in the Permian Basin involving Antares. Mr Clohessy states at a general level that 'These transactions always included a requirement for confidentiality'. As to the PSAs and negotiations between Antares with Mr Hanson (of Wade Energy), Mr Clohessy says he 'understood' that Mr Hanson had required that his and Wade Energy's identities remain confidential (at [42]). He does not state the source of his understanding but viewing his evidence generously it can be assumed that he received information by telephone from Mr Cruickshank (reading [41] and [42] chronologically). At [53] Mr Clohessy assumes the existence of a 'confidentiality regime'. Mr Clohessy then concludes (at [55]) in the context of non-disclosure of the purchaser to the ASX that 'In my mind, it was common procedure for a purchaser not to be named …'. 11 Based on the evidence, Mr Clohessy has formed an opinion as to a usual or common confidentiality requirement or 'regime' based on what he has been told by others. There is no evidence of his personal involvement in negotiations to procure any such term. Mr Clohessy does not descend into any detail that might suggest such personal involvement. Mr Clohessy seeks to draw an inference from what he has been told by others about parties requiring confidentiality as to purchaser identity. Mr Cruickshank seeks to rely on Mr Clohessy's opinion evidence to prove the fact of a common requirement of confidentiality of the identity of a purchaser. Pursuant to s 76 of the Evidence Act 1995 (Cth), the identified evidence is not admissible for that purpose. 12 The second defendant refers in his written submissions (without further explanation) to s 78 of the Evidence Act, which provides for the so-called lay opinion exception to s 76. How it is said that s 78 assists is not explained or developed. It is not explained how it might be said that Mr Clohessy's opinion evidence is based on his personal perception of a matter or event, and nor is that apparent. 13 The second defendant's submissions as to an exception to the opinion rule in fact appear to be addressed to s 79 of the Evidence Act and the exception based on specialised knowledge. 14 It can be accepted that Mr Clohessy has experience as a non-executive company director of Antares. He has other experience described in his affidavit as experience as a director of companies and working in the property and commercial property finance industries. I do not, however, accept that Mr Clohessy's evidence is of the nature of expert evidence admissible under s 79 of the Evidence Act. 15 The negotiations to which Mr Clohessy refers were conducted by others. There is no evidence of any particular training, study or experience on Mr Clohessy's part pertaining to whether the identity of purchasers is generally kept confidential in transactions involving assets or parties such as those in this matter, or pertaining to the scope or terms of such confidentiality requirements. The affidavit does not establish that his opinion is based on any specialised knowledge that he holds. I do not consider Mr Clohessy's general experience set out in his affidavit as a director of companies or his work in property and commercial property finance industries indicates experience of a sufficiently specialised nature to establish that he has expertise as to the types of contractual terms that might be commonly implied in agreements such as the PSAs. Nor does he disclose personal knowledge or experience where there were express contractual terms requiring that the confidentiality of a purchaser be maintained and in what circumstances. 16 Although Mr Clohessy refers to information being exchanged at Board meetings, he does not mention particular information about confidentiality requirements or descend into any detail of the information that may have been provided. As already addressed, the negotiations from which his asserted understanding of common usage and practice was derived were conducted by others. There is in his affidavit a general reference to a specific example of a 'confidential bid' (at [31]) but the evidence is too general to be of assistance in establishing the foundation for any relevant expertise. The terms and extent of any confidentiality requirement (including as to any permitted disclosure) is not described. 17 There was no expression by Mr Clohessy of any awareness of or attempt to comply with the Harmonised Expert Witness Code of Conduct or Federal Court Practice Note GPN-EXPT. Mr Clohessy's affidavit was included without comment in that part of the Court Book that comprised the lay evidence of the second defendant. There was nothing otherwise to suggest it was being relied upon as expert evidence under s 79. Mr Cruickshank had the opportunity to provide expert evidence and did so, by the tender of a report of Mr Looper that was identified as and filed as an expert report. 18 Having regard to all of those matters, I do not consider Mr Clohessy has the relevant specialised expertise as to confidentiality requirements and terms that might be commonly implied in agreements such as the PSAs such that his opinion evidence is admissible under s 79. Further, I do not consider the generalised nature of his evidence is of assistance in establishing the foundation for any relevant expertise. Even if I were to admit the evidence under s 79, it is not evidence that I would consider is of any real probative weight having regard to the lack of independence of Mr Clohessy and having regard to the level of generality of the evidence. 19 Having said that, I consider the evidence is admissible as evidence of Mr Clohessy's state of mind and it is admitted for that purpose. The question of the use that can be made of such evidence and the question of its attribution to Antares remain to be considered and addressed in the judgment.

[84]

Second group ruling 22 The paragraphs in the second grouping ([34], [35], [42] (first sentence), [51], [52], [56] and [57]) relate to whether Antares had or had not independently verified the capacity of Wade Energy to complete either transaction. 23 As to [34], [35], [42] (first sentence), [51] and [56], those paragraphs refer to Mr Hanson and his experience, his ability to put together a deal, Mr Hanson's backers and actions taken by him. The information has been given to Mr Clohessy by others and is second-hand hearsay. It is not admissible for the purpose of proof of the various facts asserted about Mr Hanson. 24 The second defendant asserts that the evidence is relevant to the state of mind of Mr Clohessy and to that extent is not hearsay. 25 I accept the plaintiff's submission that the evidence cannot rise higher than establishing certain communications to Mr Clohessy and as evidence relevant to the state of mind of Mr Clohessy. It is not evidence that establishes the underlying factual claim as to verification activities. 26 The second defendant also submits that the state of mind of Antares is determined by the knowledge of Mr Clohessy, and such knowledge is attributed to Antares. As already indicated, that submission (and the issue of attribution of knowledge to Antares more generally) will be addressed in the judgment. 27 The second defendant submits that the evidence at [34] and [51] is probative evidence of the state of mind of Mr Cruickshank. I do not accept that submission. It is evidence of what Mr Cruickshank told Mr Clohessy. However, even if the submission as to Mr Cruickshank's state of mind were to be accepted, it is not probative evidence of the underlying facts. That is not to say that the documentary case might not disclose other evidence relevant to the question of Mr Cruickshank's state of mind or the underlying facts. 28 The evidence at [52] is inadmissible. It comprises speculation as to the knowledge and intentions of third parties. 29 As to [57] the evidence is speculative as to the likely activities or decisions of third parties and is inadmissible. Speculation as to why the transaction did not complete is of no apparent relevance to the matters in issue. The second defendant also refers in his written submissions (without explanation) to s 78 of the Evidence Act with respect to this paragraph. There is no explanation as to which parts of the evidence might comprise lay opinion evidence or how it falls within the terms of s 78. In any event such generalised opinions are not probative of matters in issue.

[85]

Other objections 30 The evidence at [44] is admissible as to Mr Clohessy's state of mind. The probative value of such evidence and the manner in which it is relevant remain to be assessed. 31 The second defendant seeks to rely on the evidence at [49] as evidence of a communication to Mr Cruickshank. The evidence is hearsay and is not admissible as evidence that Mr Rowe was waiting on advice (without discounting that there may be other evidence relevant to this issue). Mr Clohessy's evidence is admissible insofar as it establishes that there was a communication from Graeme Smith to 'the Board' and its probative value will be assessed on that basis. TABLE Para Affidavit extract Objection Plaintiff's proposed ruling Second defendant's response Ruling [26] These transactions always included a requirement for confidentiality. My observation was that buyers did not want others to know of their interest in particular assets or operations as it may: Conclusion/hearsay - ss 76, 59 Reject To the extent the evidence is opinion, the witness is entitled to give the evidence based on the matters otherwise set out in the affidavit. First group ruling. 26.1 increase competition and hence assets prices; Fails to identify primary facts upon which 'requirement for confidentiality' is based and speaks to the state of mind of third parties. Reference to 'these transactions' is reference to matters in [24] as reported back to Mr Clohessy. 26.2 reveal the buyer had focussed on a particular part of the Permian Basin, which may affect competing interests in neighbouring acreage (contiguous assets in the Permian Basin were very desirable because of the ability to drill horizontally). Second sentence inadmissible insofar as it purports to speak to the state of mind of third parties. [27] My observation was that vendors required confidentiality to avoid other sellers offering their assets to the proposed buyer in competition with those offered by the vendor. Opinion/hearsay - ss 76, 59 Reject To the extent the evidence is opinion, the witness is entitled to give the evidence based on the matters otherwise set out in the affidavit. First group ruling. Speaks to third party's state of mind. [28] From both the buyer and seller perspective the need for confidentiality was of critical importance if they were listed entities. Opinion/hearsay - ss 76, 59 Reject To the extent the evidence is opinion, the witness is entitled to give the evidence based on the matters otherwise set out in the affidavit. First group ruling. Speaks to third party's state of mind. [29] My understanding, in relation to both sorts of transactions, was that if confidentiality was lost, then so too might be the transaction itself. Opinion - s 76 Limit to Mr Clohessy's state of mind - s 136 To the extent the evidence is opinion, the witness is entitled to give the evidence based on the matters otherwise set out in the affidavit. First group ruling. Speculates about the actions of third parties. [31] It was common for individuals or companies who were experienced in finding attractive assets to then present those assets to private backers for funding. Conclusion/opinion- ss 76, 59 Reject To the extent the evidence is opinion, the witness is entitled to give the evidence based on the matters otherwise set out in the affidavit. First group ruling. Fails to identify primary facts upon which alleged common practice is based. Argumentative. [34] I understood from discussions with Mr Cruickshank that Mr Hanson had been in the oil and gas business for some time and was experienced in finding assets and backers to fund the purchase of those assets. Opinion/hearsay - ss 76, 59 Reject To the extent the evidence is opinion, the witness is entitled to give the evidence based on the matters otherwise set out in the affidavit. Second group ruling. Speaks to experience of third party derived from conversations with Mr Cruickshank. [35] I was satisfied with Mr Cruickshank's assessment of Mr Hanson's ability to put together a deal based on Mr Cruickshank's knowledge of the market players. Opinion - s 76 Limit to Mr Clohessy's state of mind - s 136 To the extent the evidence is opinion, the witness is entitled to give the evidence based on the matters otherwise set out in the affidavit. Second group ruling. Opinion insofar as it asserts Mr Hanson's ability to 'put together a deal'. [42] I understood that Mr Hanson was backed by private interests and was proposing to purchase, through Wade Energy, Big Star and Northern Star for around $250 million. I understood that Mr Hanson had required that his and Wade Energy's identity remain confidential. Conclusion/hearsay - ss 76, 59 Reject To the extent the evidence is opinion, the witness is entitled to give the evidence based on the matters otherwise set out in the affidavit. First sentence: Second group ruling. Speaks to actions of third party without identifying primary facts. Second sentence: First group ruling. [44] I believed at the time of the announcement, however, based on my experience and previous Antares transactions, that it was a rational statement and contained all the necessary information about the transaction available to Antares at that time. Opinion - s 76 Argumentative. Limit to Mr Clohessy's state of mind - s 136 To the extent the evidence is opinion, the witness is entitled to give the evidence based on the matters otherwise set out in the affidavit. Evidence admitted subject to it being limited as evidence of Mr Clohessy's state of mind under s 136. [49] On the morning of the 15 September 2015, Graeme advised the Board of Antares that he had received a call from James Rowe of the ASX stating that he was waiting on advice from his counterparts in Sydney as to whether a suspension was still warranted. Hearsay - ss 76, 59 Reject Witness is entitled to give evidence as to the content of correspondence. Hearsay objection upheld. Inadmissible as to fact of waiting on advice. Admissible as to fact of conversation between Mr Smith and the 'Board'. Seeks to assert fact of advice by evidence of a conversation about a conversation. [51] In my discussions with Mr Cruickshank he advised me that Mr Hanson was taking all the appropriate actions that he would expect of a purchaser who was heading towards closing of the transaction. Opinion/hearsay - ss 76, 59 Reject To the extent the evidence is opinion, the witness is entitled to give the evidence based on the matters otherwise set out in the affidavit. Second group ruling. Seeks to assert fact of 'appropriate steps' by third party through conversation. [52] Ultimately the transaction did not proceed and I assumed that the dramatic drop in the oil price as a consequence of the actions taken by the Saudi Arabians had led Mr Hanson's backers to withdraw. Opinion - s 76 Reject To the extent the evidence is opinion, the witness is entitled to give the evidence based on the matters otherwise set out in the affidavit. Second group ruling (in particular [28]). Speculates about third party's state of mind. [53] In my mind, it was not necessary in September 2015 to disclose Wade Energy's name because Antares had not done so in similar transactions in the past and the confidentiality regime was such that the deal could be in jeopardy. Opinion - s 76 Argumentative. Limit to Mr Clohessy's state of mind - s 136 To the extent the evidence is opinion, the witness is entitled to give the evidence based on the matters otherwise set out in the affidavit. First group ruling. [55] In my mind, it was common procedure for the purchaser to not be named in these circumstances and it did not make any commercial sense to do so. I was surprised by the position taken by the ASX. Conclusion/opinion - s 76 Limit to Mr Clohessy's state of mind - s 136 To the extent the evidence is opinion, the witness is entitled to give the evidence based on the matters otherwise set out in the affidavit. First group ruling. Opinion insofar as it seeks to assert 'common procedure' and argumentative. [56] … but understood various sources of private equity backing were available to Mr Hanson and their identity would not necessarily be disclosed to us. Conclusion - s 76 Limit to Mr Clohessy's state of mind - s 136 To the extent the evidence is opinion, the witness is entitled to give the evidence based on the matters otherwise set out in the affidavit. Second group ruling. Speculation and seeks to assert fact of third-party funding without basis in primary fact. [57] If the asset was of good quality and appropriately priced, it was likely that the transaction would be funded. Opinion - s 76 Reject To the extent the evidence is opinion, the witness is entitled to give the evidence based on the matters otherwise set out in the affidavit. Second group ruling (in particular [29]). Argumentative. Speculates about whether a transaction would be funded. [57] In my view, it was the drop in oil price which caused the transaction not to complete. Opinion/relevance - ss 76, 55 Reject To the extent the evidence is opinion, the witness is entitled to give the evidence based on the matters otherwise set out in the affidavit. Second group ruling (in particular [29]). Argumentative. Speculates about third party's state of mind.

Parties

Applicant/Plaintiff:

Australian Securities and Investments Commission

Respondent/Defendant:

Big Star Energy Limited

Legislation Cited (7)

Trade Practices Act 1974(Cth)

Trade Practices Act 1975(Cth)

Treasury Laws Amendment (Strengthening Corporate and Financial Sector Penalties) Act 2019(Cth)

Corporations Act 2001(Cth)ss 79, 180, 674, 675, 676, 677, Part

Evidence Act 1995(Cth)ss 69, 71, 76, 79, 140, 144

Australian Securities and Investments Commission Act 2001(Cth)

National Consumer Credit Protection Act 2009(Cth)

Cases Cited (86)

Metals Group Ltd (No 5) [2009] FCA 1586 Australian Securities and Investments Commission v Fortescue Metals Group Ltd [2011] FCAFC 19; (2011) 190 FCR 364 Australian Securities and Investments Commission v Macdonald (No 11) [2009] NSWSC 287 Australian Securities and Investments Commission v Mariner Corporation Limited [2015] FCA 589; (2015) 241 FCR 502 Australian Securities and Investments Commission v Maxwell [2006] NSWSC 1052 Australian Securities and Investments Commission v Rich [2009] NSWSC 1229 Australian Securities and Investments Commission v Vines [2005] NSWSC 738 Australian Securities and Investments Commission v Vocation Limited (in liq) [2019] FCA 807 Australian Securities and Investments Commission v Westpac Banking Corporation (No 2) [2018] FCA 751; (2018) 266 FCR 147 Australian Securities and Investments Commission, in the matter of Sino Australia Oil and Gas Limited (in liq) v Sino Australia Oil and Gas Limited (in liq) [2016] FCA 934 Bradshaw v McEwans (1951) 217 ALR 1 CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390 Chamberlain v The Queen (No 2) (1984) 153 CLR 521 Commonwealth Bank of Australia v Kojic [2016] FCAFC 186; (2016) 249 FCR 421 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466 Currie v Dempsey (1967) 69 SR (NSW) 116 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 Fysh v The Queen [2013] NSWCCA 284 Gett v Tabet [2009] NSWCA 76 Grant-Taylor v Babcock & Brown Limited (in liq) [2015] FCA 149 Grant-Taylor v Babcock & Brown Limited (in liq) [2016] FCAFC 60; (2016) 245 FCR 402 Hamilton v Whitehead [1988] HCA 65; (1988) 166 CLR 121 Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 Hurd v Zomojo Pty Ltd [2015] FCAFC 148 James Hardie Industries NV v Australian Securities and Investments Commission [2010] NSWCA 332 Jones v Dunkel (1959) 101 CLR 298 Jubilee Mines NL v Riley [2009] WASCA 62; (2009) 40 WAR 299 Lardil, Kaiadilt, Yangkaal, Gangalidda Peoples v State of Queensland [2000] FCA 1548 Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705 Manly Council v Byrne [2004] NSWCA 123 Masters v Lombe (Liquidator); In the Matter of Babcock & Brown Limited (In Liq) [2019] FCA 1720 McGrath v HNSW Pty Limited [2014] FCA 165; (2015) 219 FCR 489 Medical Benefits Fund of Australia Limited v Cassidy [2003] FCAFC 289; (2003) 135 FCR 1 Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 Noske v The Queen [2017] WASC 56 Payne v Parker [1976] 1 NSWLR 191 Propell National Valuers (WA) Pty Ltd v Australian Executor Trustees Limited [2012] FCAFC 31; (2012) 202 FCR 158 Quinlivan v Australian Competition and Consumer Commission [2004] FCAFC 175; (2004) 160 FCR 1 R v Fysh [2012] NSWSC 1266 Rural Press Limited v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53 Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213; (2002) 118 FCR 236 Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152 The Bell Group Ltd (In liq) v Westpac Banking Corporation [No 9] [2008] WASC 239; (2008) 39 WAR 1 TPT Patrol Pty Ltd as trustee for Amies Superannuation Fund v Myer Holdings Limited [2019] FCA 1747 Vitali v Stachnik [2001] NSWSC 303 Vrisakis v Australian Securities Commission (1993) 9 WAR 395 Westpac Banking Corporation v The Bell Group Ltd (in liq) (No 3) [2012] WASCA 157; (2012) 44 WAR 1 Yorke v Lucas (1985) 158 CLR 661 Young Investments Group Pty Ltd v Mann [2012] FCAFC 107

[2009] NSWCA 76

[2009] WASCA 62

[2017] WASC 56

[2008] WASC 239

[2012] WASCA 157

(2017) 258 FCR 257

(2013) 209 FCR 361

(2011) 196 FCR 212

(2011) 190 FCR 364

(2015) 241 FCR 502

(2018) 266 FCR 147

(1951) 217 ALR 1