Edensor Nominees Pty Ltd v Australian Securities & Investments Commission

Federal Court of Australia|1999-12-10|Before: Adam P, Mansfield JJ

THE COURT: 1 On 12 January 1999 Yandal Gold Pty Ltd ("Yandal Gold"), the second respondent, served on Great Central Mines Ltd ("Great Central Mines"), a company listed on the Australian Stock Exchange, a takeover offer for all of the 308,960,662 shares on issue in Great Central Mines and a Part A statement in relation thereto. The offer was pitched at $1.50 per share. 2 Yandal Gold was a wholly owned subsidiary of Yandal Gold Holdings Ltd ("Yandal Gold Holdings"), the third respondent. The shares in Yandal Gold Holdings were owned as to 50.1% by Edensor Pty Ltd ("Edensor"), the appellant, and as to 49.9% by Normandy Consolidated Gold Holdings Pty Ltd ("Normandy Consolidated Gold"), the fourth respondent. Edensor held the shares in Yandal Gold Holdings as trustee of a discretionary trust for the benefit of the Gutnick family. Normandy Consolidated Gold, Normandy Mining Holdings Pty Ltd ("Normandy Mining Holdings") and Normandy Mining Finance Ltd were subsidiaries of the ultimate holding company of the Normandy group, Normandy Mining Limited ("Normandy"), a company also listed on the Australian Stock Exchange. 3 On 11 January 1999 the second to seventh respondents entered into a shareholders agreement in relation to the takeover offers which were proposed to be made the next day. Prior to that day Edensor held 38,796,342 shares (12.56%) and Normandy Mining Holdings held 85,912,369 shares (27.81%) of the shares on issue in Great Central Mines. 4 The shareholders agreement provided for the participation by Edensor and the Normandy interests in many matters, including: · the conduct of the bid that was proposed · the shareholding structure and membership of the boards of directors of the bid vehicle, Yandal Gold Holdings and Yandal Gold · dividend policy · the composition of and voting on the board of directors of Great Central Mines · the financing of the bid through a loan facility with Chase Manhattan Bank ("Chase"). Under the Chase Facility (a $285 million Syndicated Term Debt Facility in which Chase acted as agent for and with other lenders financing the bid), both Normandy and Edensor were liable to repay the debt and interest, but Edensor had no liability to Chase in the event that there was default by it in its obligations. Normandy was to have recourse only to Edensor's shares in Yandal Gold Holdings. Edensor was to be entitled to receive 90% of the value of its shareholding in Yandal Gold from Normandy and bore no risk of loss. 5 A consequence of the shareholders agreement was that all parties to it became associates of the others and entitled to relevant interests in the shares in Great Central Mines held by the other parties: (see ss 12(1)(b), (c) and (e), s 15(1)(a) and (c) and s 609 (1) of the Corporations Law). Hence on 11 January 1999 Edensor's entitlement to a relevant interest in shares in Great Central Mines increased from 12.56% to 40.37% and the Normandy group's entitlement to a relevant interest in shares in Great Central Mines increased from 27.81% to 40.37%. Yandal Gold and Yandal Gold Holdings on that day held no shares directly in Great Central Mines, but their entitlement to a relevant interest in shares in that company likewise became 40.37%. 6 The takeover offers by Yandal Gold were sent to shareholders in Great Central Mines on or about 9 February 1999. The offers were conditional on Yandal Gold becoming entitled to 90% of the shares in Great Central Mines and not less than three quarters of the persons to whom offers were made accepting the offers, thereby entitling Yandal Gold to compulsorily acquire the remaining shares under s 701 of the Corporations Law. The Part A statement stated that Edensor and Normandy Mining Holdings had advised Yandal Gold that they would not accept the offers in respect of their respective holdings. 7 Great Central Mines forwarded a Part B statement to its shareholders on 23 Feburary 1999. It was recommended that the offers be accepted, unless a higher offer was made. Accompanying the Part B statement was a report from a merchant banker pursuant to s 648 of the Corporations Law that the fair value of the shares in Great Central Mines (including a 20% control premium) lay between $1.07 and $1.54. 8 On 15 March 1999 Yandal Gold declared that the takeover offers, and any contracts arising from the acceptance of the offers, were unconditional. The offers remained open for acceptance, in the events that happened, until 21 April 1999, being the day immediately after closure of the takeover offers. On that day Yandal Gold had become "entitled" to 94.37% of the issued shares in Great Central Mines, including the 40.37% referred to earlier. Accepting shareholders received $248,431,349, that amount being drawn down under the Chase facility. As at 21 April 1999 the requirements of s 701 were satisfied and, subject to the proceedings with which the appeal is concerned, Yandal Gold was entitled to proceed to compulsory acquisition. On 4 June 1999 Yandal Gold gave shareholders who had not accepted the offers notice that they were entitled under s 703(2) of the Corporations Law to require Yandal Gold to acquire their shares at the original offer price of $1.50 less 3 cents dividend paid on the shares during the offer period. 9 The Australian Securities and Investments Commission ("ASIC"), the first respondent, formed the view that the shareholders agreement had resulted in a contravention of s 615 of the Corporations Law, which prohibits the acquisition of shares in certain circumstances. It commenced proceedings in this Court on 25 March 1999. The proceedings were amended so as to allege a further contravention of s 615 arising from entry into what is referred to in the judgment appealed from as the "non - acceptance and retention agreement". Declarations were sought that the respondents had breached s 615 in entering into both the non - acceptance agreement and the shareholders agreement. As a result of amendment to the pleadings, declarations were also sought that by issuing and dispatching the Part A statement to the shareholders, Yandal Gold had engaged in conduct in trade and commerce that was misleading and deceptive in contravention of s 52 of the Trade Practices Act 1974 (Cth) or alternatively s 12DA of the Australian Securities and Investments Commission Act 1989 (Cth) and s 995 (2)(b) of the Corporations Law. In addition ASIC sought ancillary relief. 10 The non - acceptance and retention agreement was said to be an informal agreement, arrangement or understanding between the parties to the shareholders agreement, which was not necessarily intended to be legally binding, to the effect that they would not accept the takeover offers and would retain their shares for the purpose of the bid. 11 The learned primary judge was of the view that there had been breaches of s 615 of the Corporations Law, as well as s 52 of the Trade Practices Act or alternatively s 12DA of the Australian Securities and Investments Commission Act and s 995 (2)(b)(iii) of the Corporations Law, and made declarations accordingly. The orders he made included the following: · accepting shareholders be entitled to withdraw and avoid the offers · shareholders whose shares had been compulsorily acquired under s 701(5) be entitled to give notice of avoidance and return the consideration received · Yandal Gold, Edensor and Normandy Mining be restrained from acting upon or giving effect to the non‑acceptance and retention agreement · Edensor pay to ASIC $28.5 million for payment on a pro rata basis to the shareholders in Great Central Mines (other than the respondents) · who had accepted the offers and had not exercised their entitlement to withdraw their acceptance · who had their shares acquired by Yandal Gold under s 703(2) of the Corporations Law and had not avoided the acquisition · whose shares had been compulsorily acquired under s 701(5) and had not avoided the acquisition · self executing orders in the event that Edensor defaulted, for the disposal of all the shares which Yandal Gold had acquired and which were not retransferred and for any net profit realised by Yandal Gold to be paid to accepting shareholders who had elected not to avoid their acceptances or shareholders whose shares had been compulsorily acquired but who had not sought to avoid that compulsory acquisition. 12 It is from these orders that Edensor appeals. Yandal Gold and the Normandy companies did not appeal. It is for that reason that they have been joined as respondents. They have submitted to any order which the Court may make on the appeal.

Jurisdiction 13 A preliminary point arose on the appeal as a result of the decision of the High Court in Re Wakim; Ex parte McNally (1999) 163 ALR 270. In that case, and the related cases which were heard with it, it was held that the Corporations Law was void to the extent that it was an Act of a State Parliament which purported to confer upon the Federal Court of Australia jurisdiction to entertain applications brought under it. The States of the Commonwealth could not confer jurisdiction upon a federal court where that jurisdiction was not provided for in ss 75, 76 and 77 of the Constitution. In consequence it was submitted that to the extent that the orders and declarations were made by the primary judge under the Corporations Law, he had no power to make them. 14 It was submitted further that the declarations in respect of misleading conduct under s 52 of the Trade Practices Act and s 12DA of the Australian Securities and Investments Commission Act were made in respect of claims introduced into the proceedings by amendment and in an attempt to attract jurisdiction to the Court. Accordingly, it was said, these could not be relied upon to found jurisdiction. In particular it was submitted that the so-called accrued jurisdiction of the Court would not justify the making of orders or declarations under the Corporations Law, for there was not a single controversy arising out of a common substratum of fact which would confer upon the Court jurisdiction to deal with the matters arising under the Corporations Law. 15 The principal submission can be stated quite simply. It was that the orders made relying on the Corporations Law, particularly the order that Edensor pay to shareholders $28.5 million, depended upon ss 737 and 739. Both of these sections confer upon "the Court" power to make the orders to which the sections refer. Section 58AA defines "Court" so as to include the Federal Court "when exercising the jurisdiction of this jurisdiction" (ie the jurisdiction of the State). However Wakim makes it clear that the State cannot confer jurisdiction upon the Federal Court. Hence it was submitted that the reference to the Federal Court in s 58AA is of no legal force. Accrual of jurisdiction, if that were relied upon, would not alter the definition of "Court". The word "Court" is not defined as any court having jurisdiction to determine whether there was a contravention. It specifically refers to the Federal Court when exercising the State jurisdiction. 16 For the respondents it was submitted that jurisdiction accrued to the Court in consequence of the claim under the Trade Practices Act , there being a single controversy or "matter". Once the Court was seised of the matter under the accrued jurisdiction, it was exercising the jurisdiction of the relevant State under the Corporations Law to make orders under ss 737 and 739. Alternatively it was submitted that ASIC was the Crown in right of the Commonwealth. Under s 75 of the Constitution the High Court has original jurisdiction to decide matters in which the Commonwealth is a party. Had ASIC instituted the present proceedings in the High Court's original jurisdiction, that Court would have had jurisdiction to hear the matter and would have been entitled to make the orders which the learned primary judge made. Acting under s 77 of the Constitution the Parliament of the Commonwealth has, by s 39B of the Judiciary Act 1903, conferred upon the Federal Court of Australia, so far as is presently relevant, the original jurisdiction which the High Court could exercise under s 75 of the Constitution. Therefore, this Court has jurisdiction, just as the High Court has, to hear and determine the controversy so far as it concerned the Corporations Law, and to make the orders under ss 737 and 739 of the Corporations Law which his Honour made. 17 It is convenient to consider first whether this Court has accrued jurisdiction to hear the matter so far as it relates to breaches of s 615 of the Corporations Law. 18 It is beyond doubt that if this Court has jurisdiction to determine a matter arising under any law made by the Commonwealth Parliament, for example the Trade Practices Act, the jurisdiction extends beyond the determination of the controversy involving the Commonwealth law to permit the Court to determine the whole controversy between the parties of which the federal claim forms part. So much was decided by Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261. This extended jurisdiction is usually referred to as the Court's "accrued jurisdiction". However, as Mason, Brennan and Deane JJ pointed out in Stack, there will be a problem in identifying what actually falls within the accrued jurisdiction. That problem is, as their Honours said at 290, assisted by the discussion of the accrued jurisdiction in the judgment of the majority of the Court in Fencott v Muller (1983) 152 CLR 570 at 608. There it was said: "What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships. The scope of a controversy which constitutes a matter is not ascertained merely by reference to the proceedings which a party may institute, but may be illuminated by the conduct of those proceedings and especially by the pleadings in which the issues in controversy are defined and the claims for relief are set out. But in the end, it is a matter of impression and of practical judgment whether a non - federal and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter." 19 The learned primary judge was of the view that the Court had accrued jurisdiction to grant all of the relief sought by ASIC. In his Honour's view the contraventions of s 615, if such there were, and the consequential misleading conduct, were not "severable", "distinct" or "unrelated", but arose from a "common substratum of facts" such that the Court had jurisdiction to determine the whole matter in controversy. The argument that the definition of "Court" in the Corporations Law could not validly apply to the Federal Court was not raised before his Honour. In part, no doubt, this arose because at that time the decision in Gould v Brown (1998) 193 CLR 346, binding upon his Honour, had not been overruled, so that the Court had jurisdiction in any event under the cooperative scheme as it was then thought to exist. 20 It was submitted on behalf of Edensor that his Honour had erred in finding the contraventions not "severable", "distinct" or "unrelated", and in finding that there was a common substratum of fact between the claims under s 52 of the Trade Practices Act and those arising under s 615 of the Corporations Law. In summary form, the submission was that the misleading conduct complained of was a contravention of s 52 of the Trade Practices Act by Yandal Gold and not by Edensor. The submission, however, overlooks the fact that the pleadings alleged that Edensor and others participated in Yandal Gold's breach and were thus liable as accessories . It is true that the question of accessory liability did not attract attention in the judgment appeal from. But that is not to the point. The injunctive relief that was sought and granted against Edensor was enlivened by both the Trade Practices Act and the Corporations Law. 21 In our view his Honour was correct in finding that there was a common substratum of fact which conferred on the Court jurisdiction to decide the whole "matter", the whole controversy between the parties. 22 This leaves still for consideration the argument that the Court was not empowered to grant the relief sought under the Corporations Law having regard to the definition of "Court" in s 58AA of the Corporations Law. 23 The matter was argued solely upon the basis that the consequence of Wakim was that the Parliament of a State could not confer upon a federal court, including this Court, jurisdiction to determine a matter. It was said to follow from this that where the Corporations Law of a State (though not, of course, of a Territory) gave the Federal Court power to make relevant orders, that conferral of power was invalid. As a consequence, that part of the definition of "Court" in s 58AA which refers to "the Federal Court" was invalid and should be struck from the legislation. However, we do not think that the question can be stated quite so simply. If it could, it would be answered by the proposition that there would be only pro tanto invalidity, so that where jurisdiction was validly conferred upon this Court, (for example by virtue of s 19 of the Federal Court Act), the conferral of power under the Corporations Law would be valid to that extent. 24 However, in s 58AA the definition of "court" and "Court" refers not merely to "the Federal Court" but to the Federal Court "when exercising the jurisdiction of this jurisdiction." So the real question, in our opinion, is not whether the reference to the Federal Court in s 58AA is invalid as such, but whether, when this Court is seised of a "matter" by force of the accrued jurisdiction conferred upon it by the Parliament of the Commonwealth, this Court then exercises the jurisdiction of the State in which the relevant corporation is incorporated. 25 When a federal court exercises accrued jurisdiction it is exercising federal jurisdiction: Stack v Coast Securities (No 9) Pty Ltd at 290. As McHugh J said in Wakim at 293‑294: "If the substratum of fact which gives rise to a matter in federal jurisdiction cannot be effectively disposed of without the application of State law, the issues of State law are determined in the exercise of federal jurisdiction. As Mason, Brennan and Deane JJ pointed out in Stack v Coast Securities (No 9) Pty Ltd (1984) 154 CLR 261 at 290, federal jurisdiction is 'not restricted to the determination of the federal claim or cause of action in the proceeding, but extend[s] beyond that to the litigious or justiciable controversy between parties of which the federal claim or cause of action forms part'. The determination of State law issues in such circumstances is part of the 'accrued jurisdiction' of the federal court. Federal courts do not need the States, with or without the consent of the Parliament of the Commonwealth, to confer jurisdiction upon them before they can determine issues arising under their accrued jurisdiction. But the jurisdiction which the legislation in the present proceedings purports to confer upon the federal courts is not accrued federal jurisdiction. It is an attempt to confer State jurisdiction in respect of controversies that fall outside the realm of federal jurisdiction."

The last two sentences of this passage are an apt description of the present case. Section 58AA of the Corporations Law, when read with the substantive provisions to which it attaches, including ss 737 and 739, purports to confer on this Court the jurisdiction of the State of Victoria. It empowers the Court to make orders under provisions such as ss 737 and 739 only when it is "exercising the jurisdiction" of that State. That is not accrued federal jurisdiction but State jurisdiction.

26 In Smith v Smith (1986) 161 CLR 217 the High Court considered the relationship between s 87 of the Family Law Act 1975 (Cth), which provided for the approval by the Family Court of "maintenance agreements" made in substitution for rights under the Act, and s 31 of the Family Provision Act 1982 (NSW), which enabled the Supreme Court of New South Wales to approve the release by a person of his rights to make an application under that Act in respect of a deceased person. The parties to a dissolved marriage entered into a "maintenance agreement" within the definition in the Family Law Act. It provided for the division of their property and contained mutual releases in respect of claims under the Family Provision Act. The former wife applied for the agreement to be approved by the Family Court. The case was removed into the High Court. Two issues were canvassed. The first was the former wife's submission that s 31 of the State Act was inconsistent with s 87 of the Commonwealth Act within the meaning of s 109 of the Constitution, so that the agreement did not require the approval of the State Court. The second was her submission that, if there were no inconsistency, the Family Court had accrued jurisdiction to exercise the power of approval conferred by the State Act on the State Court. The High Court rejected both submissions. On the accrued jurisdiction issue Mason, Brennan and Deane JJ said (at 251): "if the Family Court assumed an accrued jurisdiction to make an order under s 31 of the Family Provision Act approving a release in a maintenance agreement, the order would none the less not be an order of the Supreme Court. It therefore would not amount to an approval by the 'Court' which is referred to in s 31(3), with the consequence that the release would have no effect by virtue of s 31(2). It is quite impossible to read the reference to 'Court' in s 31, viewed in the light of the definition of 'Court' in s 6(1), otherwise than as a reference to the Supreme Court. It follows that the Family Court does not possess accrued jurisdiction to approve a release for the purposes of the State Act."

At 240 Gibbs CJ, Wilson and Dawson JJ expressed the same opinion.

27 In Rochester Communications Group Pty Ltd v Adler (1996) 65 FCR 572 Beaumont J, applying Smith, held that the Federal Court did not have jurisdiction to hear a matter which arose under s 275 of the Industrial Relations Act 1991 (NSW), which conferred jurisdiction on the Industrial Court. And cf Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 643 at 655‑656, 682. The impediment to the existence of accrued jurisdiction in Smith lay in the fact that the State Act conferred the relevant power on the Supreme Court. In the present case the impediment lies in the fact that while the State Act attempts to overcome the Smith type impediment by purporting to confer State jurisdiction on the Federal Court, that is something it has no power to do. 28 The respondents' alternative submission relying on s 39B of the Judiciary Act has the same vice as their principal submission. Assuming, without deciding, that ASIC is the Commonwealth for the purposes of s 39B, in making orders under ss 737 and 739 the Court would be exercising the jurisdiction of the State of Victoria purportedly conferred by a State Act. 29 As the Corporations Law provisions do not constitute a source of power for the orders of the Court apparently made under or by reference to ss 58AA, 737 and 739 of the Corporations Law, it is necessary to determine whether s 22 of the Federal Court of Australia Act 1976 (Cth) provides that power. The terms of s 22 are well known. Its ancestry, traced back to s 24(7) of the Judicature Act 1873 (UK), and largely replicated in s 32 of the Judicature Act 1903 (UK) and in comparable enactments in the States and Territories, and in s 34 of the Family Law Act 1975 (Cth), is described by Gibbs J in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 489-490. His Honour there said: "The provision, which has been considered in a number of authorities, has been said to mean "that whenever a subject of controversy arises in an action which can conveniently be determined between the parties to the action, the court should, if possible, determine it so as to prevent further and needless litigation": In the Goods of Tharp (1878) 3 P.D. 76, at p.81. In other words, it gave effect to a fundamental principle of the Judicature Act procedure, the avoidance of a multiplicity of proceedings. It has been said, and no doubt rightly, that having regard to the nature and purposes of the provision, it should be construed liberally:" [at 489] Gibbs J, and the other members of the Court, stressed that s 22 does not confer jurisdiction on the Court, but provides it with power to deal with matters in which it has jurisdiction (see Mason J at 505-506, with whom Stephen J agreed, Aickin J at 529 and Wilson J at 547). Gibbs J added, at 489-490: "Section 22 applies only "in every matter before the Court"; in other words, it is assumed that there is a matter which the Federal Court has jurisdiction to hear and determine, and the section, on that assumption, gives the court the power and imposes on it the duty to dispose of the matter completely and finally." His Honour repeated those views in Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 at 279. The scope and purpose of provisions such as s 22 of the Federal Court of Australia Act was also discussed by Gleeson CJ (with whom Meagher JA agreed) and by Kirby P in National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 at 579-580 and 584 respectively. There are many cases in which s 22 has been applied and which reflect those views, eg. McLeish v Faure (1979) 40 FLR 462 at 472 per Sweeney, Evatt and Northrop JJ. 30 There may be situations in which a grant of jurisdiction confines the circumstances in which a general power to grant relief may be exercised. In Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 it was held that the Court could not make orders by consent under s 22 of the Federal Court of Australia Act restraining a corporation from engaging in certain conduct which itself may not contravene a provision of Part IV of the Trade Practices Act 1974 (Cth). The consent orders were proposed to give effect to a settlement reached between the Trade Practices Commission and certain parties. The power to grant injunctions was found to have been limited to the circumstances provided for in s 80 of that Act. 31 The range of relief which s 22 permits where the Court is exercising accrued jurisdiction has not been fully explored. However, it is apparent that ss 737 and 739 of the Corporations Law are necessary sources of power for the making of orders of the nature now under review, if these proceedings were brought in the Supreme Court of Victoria. Section 29 of the Supreme Court Act 1986 (Vic), which is to the same effect as s 22 of the Federal Court of Australia Act, has not been suggested as carrying such power within its general terms. See also Supreme Court Act 1970 (NSW) s 63; Supreme Court Act 1995 (Qld) s 244(9); Supreme Court Act 1935 (WA) s 24(7); Supreme Court Act 1935 (SA) s 27; Supreme Court Act 1933 (ACT) s 32. The circumstances in which the ancestors to s 22 were born do not provide any warrant for the Court, when exercising its accrued jurisdiction, to be empowered to replicate particular forms of statutory relief available in another jurisdiction. It would not be suggested in the present circumstances that the Court could, under s 22, make orders of the kind under consideration if ss 737 and 739 had not been enacted in the Corporations Law. It also is consistent with the approach in Smith that the forms of relief for which ss 737 and 739 provide exclusively identify, by reference to s 58AA, the courts that are empowered to grant that relief. 32 Accordingly, s 22 does not provide the Court with power to make orders of the kind now under consideration, notwithstanding that the Court has jurisdiction to decide the whole controversy between the parties. 33 There may be cases, the present is not one of them, where the power in a State statute is expressed in general terms or in ways which permit the Court to exercise the power that a State statute confers. Whether that is the case is a question of construction. It may involve considerations such as those that arise when s 79 of the Judiciary Act 1903 is invoked. Cf Davies v Federal Commissioner of Taxation (1989) 89 ATC 4377 and the cases there discussed. 34 The appeal must be allowed. The parties should file written submissions as to any further orders that should be made. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill, the Honourable Justice Sundberg and the Honourable Justice Marshall.

Associate: Dated: 10 December 1999 Counsel for the Appellant: P R Hayes QC and I D Martindale

Solicitors for the Appellant: Clayton Utz

Counsel for the first Respondent: S Rares SC and R D Strong

Solicitor for the first Respondent: Australian Government Solicitor

Counsel for the second to seventh Respondents: N J Young QC and D J Batt

Solicitors for the second to seventh Respondents: Freehill Hollingdale & Page

Dates of Hearing: 31 August, 1 September 1999

Federal Court Act 1976(Cth)s 22

Trade Practices Act 1974(Cth)

Family Provision Act 1982(NSW)

Industrial Relations Act 1991(NSW)

Supreme Court Act 1995(Qld)s 244(9)

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