Jurisdiction - Australia
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Australia – Judicial Review Challenge To CMI Panel Decision Fails.

10 December, 2012

 

In brief

 

  • Federal Court dismisses judicial review challenge to CMI Panel decision.
  • Panel’s use of written proceedings, without an oral hearing, did not breach natural justice.

 

The Federal Court has dismissed an application for judicial review of the Takeovers Panel’s decision that shareholders with an aggregate interest of more than 46% in CMI Limited were associates. The Panel found, as a result, that the purchase of 9.22% of CMI by the trustee of the Leanne Catelan Trust breached s 606, and made orders vesting shares in ASIC for sale. A review Panel declined to conduct proceedings on an appeal from the decision and the trustee sought judicial review.

 

The trustee argued that certain inferences drawn by the Panel involved an error of law. However the Federal Court held that these inferences were open on the facts. The Court also rejected the trustee’s argument that the Panel breached the rules of natural justice by making adverse credit findings without holding an oral hearing. The Court accepted that the Panel’s process was both usual and consistent with its empowering legislation (which contemplates written proceedings). Furthermore, the Panel had given parties ample opportunity to present evidence, and the applicant had indicated to the initial Panel that the issues could be dealt with by written submissions rather than orally.

 

The decision provides a strong endorsement of the Panel’s consideration of applications on the basis of written submissions. It also underscores a key difference between Panel and judicial proceedings. The initial Panel decision took a little over six weeks and the review Panel decision just over two weeks. The judicial review challenge, by contrast, took more than 19 months.

 











For further information, please contact:

 

Garry Besson, Partner, Ashurst

garry.besson@ashurst.com

 

Stuart Dullard, Ashurst 

stuart.dullard@ashurst.com

 

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