Catena v Australian Securities and Investments Commission

The AAT's decision 11 In the review proceeding before the AAT, ASIC pressed two "areas of concern" as follows: · The applicant may have failed to comply with s 1043A(1), which is a financial services law within the meaning of s 761A of the Corporations Act in which it appeared that the applicant had procured another person to acquire shares in a company called Vision Systems Limited (VSL), a public company whose ordinary shares were listed on the Australia Stock Exchange (ASX) at material times, while in possession of inside information; and that · The applicant may have failed to comply with s 1043A(2), which is a financial services law within the meaning of s 761A of the Corporations Act in that it appeared that the applicant communicated inside information to another person knowing that the other person would be likely to acquire VSL shares. 12 The proceedings before the delegate and the AAT were conducted in circumstances that led to the applicant himself not giving or leading any evidence. At those times he held a concern that criminal proceedings might possibly be instituted against him and so declined to give or call evidence. 13 Before the delegate and in the AAT, transcripts of telephone conversations between the applicant and a number of his clients, along with other witness statements, were received as evidence. The applicant did not seek to cross‑examine the witnesses or challenge the evidence. 14 The AAT noted that s 1043A(1) of the Corporations Act relevantly prohibits a person who possesses "inside information" and who knows or ought reasonably to know that the information was not generally available and that if the information were generally available a reasonable person would expect it to have a material effect on the price or value of the shares, from (amongst other things) procuring another person to acquire those shares. 15 The Tribunal also noted that s 1043A(2) relevantly prohibits a person who possesses "inside information" and who knows or ought reasonably to know that the information is not generally available and that if the information were generally available a reasonable person would expect to it to have a material effect on the price or value of shares, and the shares are able to be traded on a financial market in Australia, from (amongst other things) directly or indirectly communicating the information to another person if he or she knows or ought reasonably to know that the other person is likely to acquire such shares. 16 The AAT noted that the delegate was satisfied that the only inference that could be drawn from the applicant's telephone conversations between 19 July and 9 August 2006, and preceding emails, was that he knew that there would be a likely merger/takeover proposal for VSL at a price of about $2.20 by mid‑August at the latest. 17 The relevant "information" alleged for the purposes of s 1043A(1) and s 1043A(2) was that it was likely there would be a merger/takeover proposal for VSL at a price of about $2.15 per share before 23 August 2006. The delegate considered that the price of $2.20 was "about $2.15" and therefore that the applicant possessed the relevant information. 18 The AAT noted that the delegate then went on to conclude that the applicant said words to his clients to "induce and encourage" them to acquire shares in VSL and that the applicant knew or ought reasonably to have known that the information was "not generally available" and, if it were, a reasonable person would expect it to have a material effect on the price of VSL shares. It was common ground that the shares in VSL were relevant "division 3 financial products" within the meaning of the definition in s 1042A. The delegate therefore had concluded that the applicant had failed to comply with s 1043A(1) and "area of concern one" was made out. 19 The AAT further noted that the delegate had referred to the various lawfully recorded telephone conversations between the applicant and his clients and concluded that by those conversations he had communicated inside information to his clients knowing that they were likely to acquire VSL shares contrary to s 1043A(2) of the Corporations Act, and so "area of concern two" was also made out. 20 Finally, the AAT noted the delegate was satisfied that a banning order prohibiting the applicant from providing any financial services for a period of five years was justified. 21 The Tribunal then considered the evidence, noting in the course of so doing, at [23], that the Evidence Act 1995 (Cth) does not apply to proceedings before the Tribunal, so that s 128 of that Act, which is designed to protect the evidence given in proceedings to which the Act applies from being used against the person giving the evidence in subsequent criminal proceedings where the person would otherwise be able to invoke the privilege against self‑incrimination, does not apply to evidence given in the Tribunal. The Tribunal accepted, however, that in not giving evidence before the Tribunal the applicant had exercised his undoubted right not to say or do anything that might incriminate himself and that no inference adverse to his interests could be drawn as a result of him availing himself of the privilege against self‑incrimination. 22 The Tribunal set out in full the detail of the communications between the applicant and his clients disclosed by the documentary evidence. 23 Having done so, the Tribunal stated, at [59], that the issue for determination was whether "based on the evidence adduced at the hearing of the application [the Tribunal is] satisfied that the applicant has contravened s 1043A of the Corporations Act". 24 The Tribunal added, at [60], that having regard to the serious nature of the allegations and the serious consequences which would flow from an adverse finding, such as the making of a banning order, the decision of the High Court of Australia in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 338 "requires a very high level of satisfaction before such findings may be made". 25 The Tribunal posed the question, at [61], whether the evidence established that the applicant knew "it was likely there would be a merger/takeover proposal for VSL". 26 The Tribunal found, at [62], that it was clear that the applicant possessed information that caused him to inform clients and others that a takeover proposal for VSL was likely. The Tribunal noted that the evidence clearly established "and the applicant did not seriously contend to the contrary" that the applicant had received and communicated information about a prospective takeover proposal for VSL. In so finding, the Tribunal noted, at [62], that: In this regard, the applicant's case was that the Tribunal could not fairly discount the possibility that such information was of a speculative nature based on market rumours and that therefore the Tribunal ought not find as a fact that the Tribunal in fact knew 'it was likely there would be a merger/takeover proposal' I will return to consider this issue later. 27 The Tribunal stated, at [63], the "second matter" to be considered was whether the facts established that the applicant knew that the likely takeover proposal would be "at a price about $2.15 per share". 28 The Tribunal found, at [65], that the price was about $2.20, and therefore was "about $2.15" as alleged. Therefore the applicant knew that the takeover price was "about $2.15" per share. 29 The Tribunal stated, at [66], the third matter to be considered was whether the applicant knew the takeover would be "before 23 August 2006" as alleged. 30 The Tribunal ultimately found, at [69], that, as to the timing of the proposed takeover, the applicant knew it was likely to occur towards the middle of August 2006, which is before 23 August 2006, and so this allegation was made out. 31 Having considered some other submissions concerning the extent to which the particulars relating to the information had to be proved precisely in the AAT (which, the Tribunal held, they did not), the AAT, at [74], turned to the applicant's contention that the Tribunal could not fairly discount the possibility that what the applicant knew was of a speculative nature "based on market". I suspect that the reasons for decision, at [74] of the AAT's decision, is probably meant to read "based on market rumours". The Tribunal immediately went on to observe that, in this regard, it was true that the applicant often referred to there being a "rumour" of a takeover in his telephone discussions with his clients. 32 The Tribunal then stated, at [75]: However, other words spoken by the applicant, including in certain of the telephone conversations referred to above, can be explained only by the applicant either lying to those with whom he spoke or the applicant knowing of information above and beyond more (sic - mere) 'rumour' or 'speculation'. Examples of the other words spoken were then set out on which this statement relied. 33 The Tribunal, at [76], then referred to a witness statement of Charles Pizzey, the Company Secretary and Chief Financial Officer of VSL during 2006. Mr Pizzey was not cross‑examined on his witness statement. In it he confirmed that the proposed merger between Ventana Medical Systems Inc (Ventana) and VSL was the subject of a confidentiality agreement between the companies dated 12 July 2006, that it was "highly confidential and market sensitive", that "in addition to the board members of VSL and Ventana only a limited number of people were aware of the proposal", that "very few brokers, possibly two or three, covered VSL, because we were a small stock" (one of whom was Craig Stranger), that a proposed merger by way of a scheme of arrangement between Ventana and VSL was not announced until after 10 August 2006 (when a trading halt was placed on the trading of VSL securities) and that: I was not aware of any leakage of information concerning the takeover by Ventana or any loss of confidentiality at all prior to the trading halt on 10 August 2006 and the announcement on 14 August 2008 (sic - obviously 2006). I heard no rumours or speculation about the transaction within the market before the merger was announced. 34 Then, at [77], a passage which the applicant attacks on this appeal in relation to the question of burden or onus, the Tribunal stated: No evidence was led by the applicant to establish the existence of market rumour or speculation. Senior Counsel for the applicant did, however, rely upon material before the Tribunal to establish the existence of such rumour or speculation. In particular reliance was placed on the witness statement of Craig Stranger, a lead analyst with the Equities Research Division of Austock Securities Limited ('Austock') who was one of the analysts who Mr Pizzey referred to as covering VSL. 35 The Tribunal then set out the paragraphs of the statement of Mr Stranger upon which senior counsel relied in this regard. 36 At [81], the Tribunal found: Properly analysed, the statement made by Mr Stranger does not establish the existence of market rumour or speculation of a takeover by VSL. Moreover, at its highest, all that what Mr Stranger said is capable of establishing is a high level rumour or market speculation: not the existence of a market rumour or speculation that extended both to the likely price and timing of a takeover. 37 The Tribunal therefore found that the applicant knew information that was patently price sensitive: there being no suggestion on behalf of the applicant that such information, if it were more than rumour or speculation, did not possess that quality. 38 The AAT then made a number of findings at [83] that supported the delegate's decision that the applicant had contravened s 1043A(1) and s 1043A(2) of the Corporations Act. The AAT then affirmed the decisions under review.

Applicant's submissions on appeal 39 I have already referred above to the primary question of law identified by the applicant in his amended notice of appeal. 40 In his submissions, the applicant says that the central issue considered by the delegate was whether in respect of the two relevant areas of concern the elements necessary to make out contraventions of s 1043A(1) and s 1043A(2) of the Corporations Act had been made out. 41 The applicant submits that central to both subsections is the meaning of "inside information", which is defined in s 1042A to mean: Information in relation to which the following paragraphs are satisfied: (a) the information is not generally available; (b) if the information were generally available, a reasonable person would expect it to have a material effect on the price or value of particular Division 3 financial products. 42 The word "information" is separately defined in s 1042A to include: (a) matters of supposition and other matters that are insufficiently definite to warrant being made known to the public; and (b) matters relating to the intentions, or likely intentions, of a person. 43 The meaning of information being "generally available" is separately dealt with in s 1042C(1), which defines information being generally available if: (a) it consists of readily observable matter; or (b) both of the following sub-paragraphs 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 Division 3 financial products of a kind whose price might be affected by the information; (ii) since it was made known, a reasonable period for it to be disseminated among such persons has elapsed; or (c) it consists of deductions, conclusions or inferences made or drawn from either or both of the following: (i) information referred to in paragraph (a); (ii) information made known as mentioned in sub-paragraph (b)(i). 44 The applicant points out (reasonably) that in order to make out a contravention of s 1043A it must be shown that the person (the insider): · possesses inside information; · knows or ought reasonably to know that the information is not generally available; · knows or ought to reasonably to know that if the information were generally available a reasonable person would expect it to have a material effect on the price or value of securities. 45 The applicant contends that it is it is apparent that the AAT failed to approach its review of the delegate's decision by systematically analysing the elements that make out a contravention of s 1043A. 46 The applicant accepts that the AAT correctly identified the necessity to apply the standard of proof in Briginshaw v Briginshaw,but says that the AAT thereafter failed to evaluate the material before it to determine, in respect of each element that gives rise to a contravention of s 1043A, whether the relevant standard identified in Briginshaw v Briginshaw had been met. 47 The applicant says that while the AAT correctly identified that the applicant had raised before it a case that the Tribunal could not fairly discount the possibility of the information he had being of a speculative nature based on market rumours, the Tribunal: misunderstood this presuming only that the Appellant's case was going to the state of knowledge of the Appellant (being the separate element to the offence namely that the insider knew or ought reasonably to know that the matters within the definition of inside information were satisfied in relation to the information in question). The Tribunal failed to identify that the fundamental issue raised by such a case was that the information was not inside information within the meaning of the terms as statutorily defined. 48 The core of the applicant's argument then is put in these terms: Nowhere in the Tribunal's decision does the Tribunal directly confront and deal with the issue of determining whether the information in question was inside information within the statutory meaning of that expression. 49 The applicant contends that the Tribunal misstated the correct test to be applied. Rather than go back to the statutory definition to determine whether the information was not generally available, the Tribunal expressed the test in terms of considering: the Applicant's contention that the Tribunal could not fairly discount the possibility that what the Applicant knew was of a speculative nature based on market. The applicant argues that the application of the proper test involved more than a mere evaluation of a "contention" by the applicant. 50 The applicant also points to the Tribunal's analysis of the words spoken by the applicant to his clients as being consistent only with lying or knowing information above and beyond mere rumour or speculation. The applicant contends that the Tribunal discounted lying as a reasonable inference and merely concludes that the applicant knew information. The applicant contends that the Tribunal engaged in impermissible reasoning inconsistent with the tests enunciated by the High Court, for example in Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 at 375, per Dixon J; and Luxton v Vines (1952) 85 CLR 352 at 358. 51 As to the witness statement of Mr Pizzey, the applicant says that Mr Pizzey did not say that the information had not been further communicated by any of the people who were aware of it. He did not say that the information was not generally available. There was no relevant material from which it could be inferred that the information was not generally available (in this regard see by way of contrast the relevant material that was available to the Court in R v Rivkin [2004] NSWCCA 7, at [178] - [182]). 52 The applicant then goes on to contend that, in [77] of the AAT's reasons, the Tribunal commented, in a manner suggesting that an onus lay upon the applicant, that the applicant had not led evidence to establish the existence of a market rumour or speculation. 53 The applicant contends that, at [81] of the Tribunal's reasons, the Tribunal fundamentally mistook its task and "wrongly phrases the test in a diametrically opposite manner to the Corporations Act". It states the test as being one of whether or not the applicant could establish "the existence of market rumour or speculation". The applicant contends that the statutory offence requires evidentiary material that positively disproves that there was market rumour or speculation - in other words, material which establishes that the information was not generally available. 54 In the event, the applicant contends that the analysis by the Tribunal failed to address the central issue as to whether or not the respondent had discharged its obligation to show to the Tribunal that there was evidentiary material of sufficiently persuasive weight to establish each of the elements of the alleged contravention of s 1043A. 55 The applicant says that upon the evidentiary material before it, the Tribunal should have concluded that the respondent had failed to adduce sufficient evidentiary material to the requisite standard to establish each of the elements of the alleged contravention.

consideration 56 In my view, while it might be said that the Tribunal could have written a more elaborate set of reasons, laying out the relevant statutory provisions and identifying each of the elements that needed to be established to prove contravention of the two areas of concern (as to s 1042A of the Corporations Act), and have systematically worked its way through the evidence to demonstrate its satisfaction that each element of contravention was made out, having regard to the context in which the AAT made its decision and the reasons as a whole, the Tribunal correctly performed its task on review. 57 It needs to be noted that this is a case where the material that was before the delegate of ASIC was placed before the Tribunal on review. The evidence of what the applicant had discussed in telephone conversations with his clients was a matter of documentary record received by the Tribunal. The witness statements of Mr Pizzey and Mr Stranger were received by the Tribunal. The applicant, through senior counsel, did not require any person to be produced for the purposes of cross‑examination in relation to any of the evidence and did not challenge the evidence. 58 Senior counsel for the applicant then primarily argued in the AAT that, taking the evidence as a whole - what the applicant had said to his clients, what Mr Pizzey had to say and what Mr Stranger had to say about rumour and market speculation - the AAT could not fairly discount the possibility that the information that the applicant had utilised was the subject of market rumour or speculation at the time, such that it was generally available. If the AAT accepted that this was the state of the evidence then obviously ASIC could not establish the information used and communicated by the applicant was "not generally available", as required by para (a) of the definition of "inside information". In my view, the Senior Member of the AAT understood exactly why the issue had been framed in this way by senior counsel for the applicant. 59 In these circumstances, the case of the applicant before the AAT was primarily run on the basis that all the elements of the alleged contravention could be made out, save and except that ASIC could not satisfy the Tribunal that the information was not generally available - because it was the subject of market rumour and speculation. As I say the Tribunal's Senior Member understood this. 60 That then is why, at [74] of the AAT's reasons, the Tribunal specifically turned to "consider the applicant's contention that the Tribunal could not fairly discount the possibility that what the applicant knew was of a speculative nature based on market". The AAT appreciated this was critical to the finding it had to make as to whether the information constituted "inside information" as defined. 61 It was in that context that the Tribunal gave close consideration to, first, what the applicant had said to his clients. At [75], having suggested that the words spoken by the applicant in telephone conversations could only be explained by the applicant having lied or knowing of information above and beyond mere rumour and speculation, the AAT ultimately found, at [83], that the applicant knew information that was not merely rumour or speculation. 62 It seems to me it was reasonably open to the Tribunal to draw this inference having regard to the evidence considered as a whole. In this regard, the test for the drawing of an inference in a criminal prosecution, as discussed in Martin v Osborne at 375, is not directly relevant in an administrative review hearing where a tribunal must be satisfied as to a state of affairs. Arguably, nor is the basis upon which an inference will be drawn from circumstantial evidence in a civil case, as discussed in Luxton v Vines at 358. It might be suggested, however, (without deciding) that the civil approach of only drawing an inference where it is a more probable inference than other available inferences, has much to commend it in the type of administrative review decision‑making undertaken by the AAT in this case, even though no party bears a formal onus or burden to prove a case in a review proceeding (as to which see McDonald v Director‑General of Social Security (1984) 1 FCR 354 at 358). 63 The Tribunal referred to the evidence of Mr Pizzey, as it seems to me, merely to emphasise the fact that there was not any obvious leakage of information to the market. However, it also needs to be noted that that evidence from Mr Pizzey included the fact that he had not heard any rumours or speculation about the transaction "within the market" before the merger was announced. The AAT was entitled to consider this evidence in determining the question of what information was generally available. It was obviously relevant. 64 From the applicant's point of view, as his senior counsel submitted, the strongest evidence to suggest that there were rumours and speculations about a takeover was that of Mr Stranger, one of the few analysts who covered VSL stock. He said in his witness statement that in June to August 2006 "there was press both domestically and offshore suggesting VSL was a takeover candidate given its large cash balance and exposure to medical diagnostics". He added "most of the press… commenced after the company went into a trading halt on 10 August 2006". He also gave other evidence that suggested Ventana was seen as a potential acquirer because it had between 50% - 70% of the market VSL was rapidly moving into. 65 In the event, at [81] of its reasons, the AAT found, not unreasonably in my view, that Mr Stranger's evidence merely established that there was high level rumour or market speculation, but it did not suggest that there existed market rumour or speculation that extended both to the likely price and timing of a takeover. It was that part of the information possessed by the applicant - that the price was about $2.15 and that the timing of takeover was in about the middle of August - that was critical to the Tribunal's assessment that information was not generally available. 66 In all of these circumstances, the Tribunal focussed on the issue that had been made critical to its determination by the way this case was argued before it. Given that the case proceeded on documentary evidence, and counsel for the applicant drew what he could in order to press the case of the applicant, the approach taken on behalf of the applicant (not surprisingly) was simply that the information he possessed could not be shown to be inside information because it was information readily available, given that it was the subject of market rumour and speculation. The submission was encapsulated in the contention that the Tribunal "could not fairly discount the possibility". 67 In those circumstances, it is artificial to suggest that the Tribunal failed to address the central issue as to whether or not the respondent had discharged its obligation to show to the AAT that there was evidentiary material of sufficiently persuasive weight to establish each of the elements of the alleged contravention of s 1043A. In my view, construed fairly as a whole, the Tribunal did not lose sight of the task it had, to decide if it was satisfied that ASIC had made out its case on the evidence that the information utilised by the applicant was inside information as defined. 68 In these circumstances, the appeal on the central issue, encapsulated in question of law 2.1 of the amended notice of appeal, must fail. 69 The subsequent formulations of questions of law from question 2.2 of the amended notice of appeal onwards focus on the burden to be discharged in proving a contravention or the onus that lay on ASIC to establish the elements of the contravention, fail in their substance, but also go perilously close to inviting the Court on the appeal to review the merits of the decision made by the Tribunal. That is exactly the sort of function that s 44(1) is intended to prevent. 70 So far as the applicant's questions of law are concerned, that rely on [77] of the reasons of the Tribunal, and the suggestion that, having regard to the first sentence thereof, the AAT effectively imposed an onus on the applicant to establish the existence of market rumour or speculation, I do not consider that [77] (or any other passage) evidences such an approach. All that the Tribunal did at [77] was observe, as was the fact, that the applicant had not led any evidence to establish the existence of market rumour or speculation. The Tribunal then went on immediately, in [77], to note that senior counsel for the applicant in that regard relied upon material that would enable the Tribunal to find that ASIC's case was not made out. As explained above, the Tribunal, having regarded all the evidence, obviously was satisfied there was a use of "inside information" as defined that fell within the two areas of concern. At no time did it expressly or constructively approach its review functions on the basis that, unless the applicant established that the information in question was the subject of market rumour and speculation, his review application must fail. 71 The AAT applied the correct standards concerning the burden and onus of proving the alleged contravention. The Tribunal acknowledged the application of the well known decision in Briginshaw v Briginshaw. The Tribunal plainly understood that by reason of that decision, it should not make findings lightly, having regard to the serious consequences that in all likelihood would flow to the applicant. 72 In summary, in the circumstances of the proceeding, the Tribunal's focus on the issue formulated by senior counsel for the applicant, that it could not fairly discount the possibility that the information possessed by the applicant was of a speculative nature based on market rumours, did not lead the Tribunal into error. 73 In light of this finding, it is unnecessary to make any hard and fast rulings as to whether the applicant has identified pure questions of law in this appeal in his amended notice of appeal. I consider question 2.1 is such a question. By contrast, I tend to think that the subsequent formulations dealing with burden and onus issues are calculated to invite a reconsideration of the merits of the decision and probably do not meet the requirements of s 44(1) of the AAT Act. I should say I also agree with the respondent's submission that aspects of the applicant's submissions, that in effect challenged the AAT's reasoning process, were not reflected in stated questions of law or did not present questions of law for the purposes of s 44(1) of the AAT Act.

conclusion and order 74 For the reasons given above, the appeal should be dismissed with costs. I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.