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[2019] AATA 5035
General information, not legal advice.
Administrative Appeals Tribunal of Australia
2019-11-26
Original judgment source is linked above.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for the decision herein of Deputy President
....................[sgd]..................................................
[13] Applicant's Statement of Facts and Contentions dated19 May 2017 at [2.7]
[18] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents); T3 at 13
[21] The other companies were MAN AHL Gold (AUD) Limited, MAN OM-IP 2 AHL Limited and MAN AHL Diversified (AUD) Limited.
[28] Corporations Act; ss 710(3)(b) and (c)
[29] Corporations Act; ss 711(2) and see also s 711(4)(a)
[44] Rule 3.1 of the ASX Listing Rules provides that:
"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....
Note: Section 677 of the Corporations Act defines material effect on price or value. ...
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);
Chapter 11 is entitled "Significant transactions".
"11.1 If an entity proposes to make a significant change, either directly or indirectly, to the nature or scale of its activities, it must provide full details to ASX as soon as practicable. It must do so in any event before making the change. The following rules apply in relation to the proposed change.
11.1.1 the entity must give ASX information regarding the change and its effect on future potential earnings, and any information that ASX asks for.
11.1.2 If ASX requires, the entity must get the approval of holders of its ordinary securities and must comply with any requirements of ASX in relation to the notice of meeting. The notice of meeting must include a +voting exclusion statement.
11.1.3 If ASX requires, the entity must meet the requirements in chapters 1 and 2 as if the entity were applying for admission to the +official list."
[48] [1987] FCA 266; (1987) 14 FCR 434; 74 ALR 428; 13 ALD 254; 7 AAR 187; Sweeney and Jenkinson JJ; Gummow J dissenting
[51] [2005] AATA 898; Deputy President Walker
[55] Section 47G(1)(b) provides that a document is conditionally exempt if the disclosure of the information could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency for the purpose of the administration of a law of the Commonwealth or of a Territory or the administration of matters administered by an agency. Section 47G(1)(b) does not have any application for ASIC issued its Statement of Concerns as part of the regulatory scheme I have summarised above. Like any other corporate entity subject to that regulatory scheme in Part 6D, KPC had statutory obligations if it wished to offer securities to the market. Disclosure under the FOI Act could not reasonably be expected to prejudice the future supply of information by a corporate entity required to meet its obligations under Part 6D.
[60] [2016] AATA 445; [46]-[57]
[62] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers (Chambers)
[64] Attorney-General's Department and Another v Cockcroft [1986] FCA 35; (1986) 10 FCR 180; 64 ALR 97 at 190; 106 per Bowen CJ and Beaumont J. Putting aside the introduction of a separate public interest test, 43(1)(c)(ii) was drafted in terms reflecting the current s 47G(1)(b).
[65] [1986] FCA 35; (1986) 10 FCR 180; 64 ALR 97 at 196; 112 per Sheppard J
[66] Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another [1992] FCA 241; (1992) 36 FCR 111; 108 ALR 163; 16 AAR 28 at 123; 176; 40 per Davies, Wilcox and Einfeld JJ
[68] Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health [1995] FCA 1060; (1995) 56 FCR 50; (1995) 128 ALR 238; 37 ALD 357 (Lockhart, Beaumont and Gummow JJ) at [34]; 59; 245; 364 per Lockhart J
[69] McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516; 43 AAR 151; 80 ALJR 1549; 63 ATR 409 at [55]; 444; 202; 531; 167; 1561; 424 per Hayne J
[70] Director of Public Prosecutions v Smith [1991] VicRp 6; [1991] 1 VR 63; (1991) 100 FLR 6 at 76; 18-19; Kaye, Fullagar and Ormiston JJ
[74] FOI Guidelines at [6.22] (Citations omitted)
[75] Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health [1995] FCA 1060; (1995) 56 FCR 50; (1995) 128 ALR 238; 37 ALD 357 (Lockhart, Beaumont and Gummow JJ) at [34]; 59; 245; 364 per Lockhart J
[76] McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516; 43 AAR 151; 80 ALJR 1549; 63 ATR 409 at [55]; 444; 202; 531; 167; 1561; 424 per Hayne J
[77] Director of Public Prosecutions v Smith [1991] VicRp 6; [1991] 1 VR 63; (1991) 100 FLR 6 at 76; 18-19; Kaye, Fullagar and Ormiston JJ and see also Director of Public Prosecutions v Smith [1991] VicRp 6; [1991] 1 VR 63; (1991) 100 FLR 6 at 74; 17 per Kaye, Fullagar and Ormiston JJ
[78] McKinnon v Secretary, Department of Treasury [2005] FCAFC 142; (2005) 145 FCR 70;
[2005] FCAFC 142; 220 ALR 587; 41 AAR 23; 88 ALD 12; 80 ALJR 1549; 63 ATR 409; Tamberlin, Conti and Jacobson JJ at [246]; 142; 655; 94; 80; 1569; 434 per Jacobson J approved by Callinan and Heydon JJ in McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516; 43 AAR 151 at [93]; 456; 212; 541; 177
[79] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210; 89 ALR 71; 64 ALJR 87 at 216; 74; 89 per Mason CJ, Brennan, Dawson and Gaudron JJ; Toohey J dissenting
[80] McKinnon v Secretary, Department of Treasury [2005] FCAFC 142; (2005) 145 FCR 70; 220 ALR 587; 88 ALD 12; 41 AAR 23 at [231]; 139; 653; 78; 92 per Jacobson J with whom Tamberlin J agreed, citing Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 60 per Stephen J
Attorney-General's Department and Another v Cockcroft [1986] FCA 35; (1986) 10 FCR 180; 64 ALR 97; (1986) 12 ALD 468
Corrs Pavey Whiting & Byrne v Collector of Customs [1987] FCA 266; (1987) 14 FCR 434; 74 ALR 428; 13 ALD 254; 7 AAR 187
McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516; 43 AAR 151; 80 ALJR 1549; 63 ATR 409
O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210; 89 ALR 71; 64 ALJR 87
Re Bell and Secretary, Department of Health and Robert de Castella's Smartstart for Kids Limited [2015] AATA 494
Re Mangan and The Treasury [2005] AATA 898
Re Prinn and Department of Defence [2016] AATA 445
Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health [1995] FCA 1060; (1995) 56 FCR 50; (1995) 128 ALR 238; 37 ALD 357
Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1
Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another [1992] FCA 241; (1992) 36 FCR 111; 108 ALR 163; 16 AAR 28
(1) "In our opinion, in the present context, the words 'could reasonably be expected to prejudice the future supply of information' were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. To construe s 43(1)(c)(ii) as depending in its application upon the occurrence of certain events in terms of any specific degree of likelihood or probability is, in our view, to place an unwarranted gloss upon the relatively plain words of the Act. It is preferable to confine the inquiry to whether the expectation claimed was reasonably based (see Kioa v West [1985] HCA 81; (1985) 60 ALJR 113 per Mason J and Gibbs CJ)."[64]
(3) There is a "... distinction between the public interest and a matter of public interest. The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals: Sinclair v Mining Warden at Maryborough [1975] HCA 17; (1975) 132 CLR 473, at p. 480, per Barwick CJ. There are, as appears to be implicit in the quoted passage of the judgment of Morris LJ in Ellis v Home Office (supra), several and different features and facets of interest which form the public interest. On the other hand, in the daily affairs of the community events occur which attract public attention. Such events of interest to the public may or may not be ones which are for the benefit of the public; it follows that such form of interest per se is not a facet of the public interest...."[70]
(1986) 10 FCR 180
(1987) 14 FCR 434
(1991) 100 FLR 6
(2006) 228 CLR 423
(1989) 168 CLR 210
(1995) 56 FCR 50
(1995) 128 ALR 238
(1978) 142 CLR 1
(1992) 36 FCR 111
(1985) 60 ALJR 113
(1975) 132 CLR 473
(1947) 74 CLR 492
(2005) 145 FCR 70