Case: Attorney General (Cth) v Alinta Ltd [2008] HCA 2 ; (2008) 242 ALR 1
Outcome: referred to
It may well be that the Panel's concern to make quite clear that it was not basing its decision on a finding that there had been a contravention of the Corporations Act was because its decision predated the decision of the High Court in Attorney-General (Cth) v Alinta Ltd [2008] HCA 2 ; (2008) 242 ALR 1. At the time, therefore, the question of whether s 657A(2)(b) involved the exercise of the judicial power of the Commonwealth had not been authoritatively determined. 25 The review Panel rejected CEMEX's submission that the terms of its best and final offer should be construed as retaining for CEMEX a discretion whether or not it would deduct the amount of the dividend paid to Rinker shareholders or that it had qualified its 10 April announcement by reserving such a discretion. It referred to analysts' reports submitted by CEMEX and found that of the seven reports submitted, only one expressed the view that CEMEX could allow Rinker shareholders to retain the benefit of the final dividend, two expressed a contrary view and the others did not address the matter. 26 The review Panel also referred to the statement made by Rinker on 27 April 2007, when it announced the final dividend of $0.25. The Rinker announcement said: Shareholders should note that under the terms of CEMEX's takeover offer for Rinker, CEMEX has the right to deduct the amount of the dividend (or an amount equal to its value, as are reasonably assessed by CEMEX) from the offer price payable to accepting shareholders who have or will receive that dividend. The Panel considered that the "ordinary reading of the statement" would merely remind shareholders of the terms of CEMEX's offer and would not convey the meaning that CEMEX might improve its offer, by allowing them to retain a dividend. 38 The regulatory framework which Chapter 6 establishes is, as Gleeson CJ observed in Attorney General (Cth) v Alinta Ltd at 4, designed "to preserve an efficient, competitive and informed capital market". Section 657A(1) recognises that the conduct of a takeover may be inconsistent with such a market even where it does not contravene a specific provision of the Corporations Act . Emmett J recognised this in Glencore International AG v Takeovers Panel [2006] FCA 274 ; (2006) 151 FCR 77 at 108: The panel, of course, is expressly empowered by s 657A(1) to make declarations notwithstanding that there has been no contravention of the Act. Part 6.10 of the Act provides flexibility in the regulation of the acquisition of shares in circumstances where the literal operation of the regulatory regime is either unnecessarily restrictive or ineffective to achieve the object of Ch 6. It is clear enough that the regime involving the panel is designed to ensure regulation of the acquisition of shares over and above the provisions contained in the balance of Ch 6: ... The panel made its declaration because, notwithstanding compliance by Glencore and the Banks with the disclosure regime prescribed by the Act, the purposes of Ch 6, as expressed in s 602 , were not achieved. That is precisely the circumstance for which s 657A provides. It is not unreasonable for the panel, if its decision was otherwise lawful and authorised, to reach that conclusion.