Case: Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union [1979] FCA 84 ; (1979) 42 FLR 331
Outcome: considered
Butcheries Pty Ltd v Australasian Meat Industry Employees' Union [1979] FCA 84 ; (1979) 42 FLR 331 was a case under s 45D of the TPA concerning secondary boycotts. It was, in that case, necessary that the impugned conduct "would have or be likely to have" the relevant effect. Consideration was given to whether, on an ex post view, the specified effect had occurred. Deane J at 347 citing Dixon J in Willis v Commonwealth [1946] HCA 22 ; 73 CLR 105 explained: if conduct had run its ordinary course and had not had the specified effect, it would be but rarely that a court would feel justified in disregarding the lesson of the event and finding that while the conduct did not have the specified effect it had been more likely than not that it would have had that effect. Tillmanns [1979] FCA 84 ; 42 FLR 331 was referred to with apparent approval by Gzell J in ASIC v Macdonald (No 11) 256 ALR at [1068] although in relation to s 1041E of the Act where the test, whilst similar, is not the same. Materiality: a commercial judgment The question is whether the Informations was information for the purposes of s 674(2) read together with s 677 which would or would be likely to influence common investors in deciding whether to acquire or dispose of FMG's securities and thereby be information which a reasonable person would expect if it were generally available, to have a material effect on the price of FMG's shares. The threshold of relevant influence is not, in my opinion, a high one. ASIC, in this case, says that expert assistance is unnecessary for the Court. Senior counsel for ASIC submits that the question of influence for the purposes of s 677 involves primarily a commonsense test for the Court upon a consideration of the primary facts although assistance may be derived from experts who professionally buy and sell shares in large tranches and make investment decisions of the kind contemplated by s 677. I accept this submission. ASIC submits that the fact or likelihood of relevant influence of the Informations is obvious having regard to the nature of this information which individually and together concerned a step forward about the construction of the Project infrastructure, which was integral to FMG's plans. ASIC says that if the three framework agreements were to lead, as both parties evidently intended, to binding build, finance and transfer type agreements, this would be a major advance as it would secure finance and a construction agreement for FMG's total estimated payout costs of $1.85 billion. It adds that the likely influence upon common investors of the Informations is a matter of common sense: it was information which was very significant for the Project and its prospects of being realised, as it was a step forward in arranging for the financing and construction of the rest of its Pilbara infrastructure. ASIC seems ambivalent as to the effect of the Framework Agreements. It says, on the one hand, that they are merely agreements to negotiate and are probably not even enforceable as such. Then on the question of materiality under s 674(2)(c)(ii) ASIC contends that they represent a "major advance" if the negotiations proved successful.