The Judge was wrong, therefore, so it was said, in regarding an order the effect of which was to compel disclosure as a form of "punishment" which it was not the object of the provisions to impose. The Judge, the Commission argued, was preoccupied with a perceived need to enable the shares to be sold and failed to take other essential matters into account.
Although those submissions have obvious force, I am persuaded by the argument for Leumi and EBC that the primary Judge's discretion did not miscarry. First, his Honour had a discretion as to remedy, albeit one to be exercised judicially: there is a range of possible remedies, of which those are to be selected which are appropriate to the circumstances of the case. Secondly, the circumstances were unusual in that, at the time when his Honour had to consider what remedy was appropriate, there were two
competing bids for all the shares in OAP by parties evidently unrelated to those who held interests in the shares covered by the notices.
Thirdly, I do not think that the criticism can be sustained that the Judge took account of irrelevant matters or failed to take account of essential ones. It is, in general terms, unexceptionable, as an exercise of discretion, to refuse specific relief if that relief would compel a breach of the law: see, e.g., Pottinger v George (1967) 116 CLR 328 at 337. Indeed, in Rowell v Pratt [1938] AC 101 at 106, Lord Wright said bluntly that a judge "cannot compel a man to commit a criminal offence". I cannot think it is a wrong exercise of discretion to take into account that specific relief, or relief having a similar practical effect, may compel conduct which is in breach of foreign law; thus I think that the Judge was right in having regard to Swiss law in considering the appropriate remedy: to do so in my view is not, as the Commission contended it was, to give Swiss law primacy over Australian law. It is clear that his Honour took into account the primary object of the disclosure provisions: he considered that in the particular circumstances their primary object would be adequately served, having regard to the other considerations to which he referred, by an order for sale to the highest bidder without an order freezing the shares or their proceeds. It is clear also (Appeal Book p 1281) that he took into account - albeit in a somewhat different context - the possible investigatory object of the provisions but, rightly in my view, regarded that as a subsidiary object. His Honour was clearly right in taking into account the degree of culpability of Leumi and EBC (Metals Exploration Ltd v Samic Ltd (1994) 181 CLR 109 at 127, 128) and I can see no basis for interfering with his findings on that subject. Finally, I do not think his Honour's
treatment of the position of the ultimate beneficial owners ("ultimate wrongdoers" as counsel for the Commission described them) discloses error. There was no evidence as to who they were (which distinguishes this case from, for instance, Re North Broken Hill Holdings Ltd (1986) 10 ACLR 270), where they were resident or domiciled or what their grounds or motives may have been for refusing their nominees permission to disclose their identity. Certainly, there was no basis for a conclusion that they had, so far as Australian or any other law was concerned, any obligation to permit disclosure. I do not think his Honour was wrong in taking account, as a discretionary matter going to remedy, of the fact that an order he was asked to make might punish those persons, by depriving them of their interest in the shares or their proceeds, for (and during the continuation of) failure to make a disclosure which their nominees, but not (for anything that appears) they themselves, had an obligation to make.
I think, therefore, that we should not interfere with the exercise by the primary Judge of his discretion as to remedy. Two things should, however, be emphasised: one is that the existence of the two offers for the shares in OAP was an important consideration in this case and made it somewhat unusual; secondly, there were a number of other discretionary considerations which led his Honour to conclude that, having made declarations, the only consequential relief required was an order that the shares be sold. I would not assent to the general proposition, put to us in argument by counsel for Leumi, that in most cases of non compliance with a secondary notice the appropriate order will be (only) one for a peremptory sale of the shares to which the notice relates. It is not, I think, as counsel described it, impermissibly to "conflate" obligation with remedy to say that the
evident policy of the Law is that the identity of beneficial owners of shares in Australian listed companies should, if required by a notice given under the Law, be disclosed, not that such a holder should generally be able to avoid the obligation of disclosure, where it is required, by prompt sale. For instance (and it should be stressed that this is only an example) an order for sale of a large parcel may well, despite whatever publicity the proceedings may receive, be highly disruptive to the market in the shares concerned unless the sale takes place over a substantial period; but if nevertheless disclosure is not made, and is not compelled, during that period the market remains uninformed and the policy of the Law is not given effect. Again, a nominee company which is fully aware of the requirements of Australian law and of the remedies available for breach may not evoke much sympathy if it persists in a practice of acquiring Australian shares on behalf of clients without obtaining instructions which would permit disclosure of their identity if required. That is to say no more than that the question, what is the appropriate remedy, is a discretionary one which in each case will have to be answered having regard to the particular circumstances; there is in my view no general rule.
3. Has the Court power to make an order vesting in the Commission the proceeds of sale of shares, or otherwise to "freeze" those proceeds?