Billis is not gone.
Until the orders of the Takeovers Panel are written in black and white and until all avenues for constituting a new panel to potentially review those orders and/or appeals for judicial reviews to the Federal Court have been been worked through and the orders of the Panel become final then there is just no knowing how this situation will resolve.
The TakeOver panel must be careful not to over-reach as that may not be in the best interests of the company as a whole and it might set precedents that open the flood gate to new applications from right across the Australian corporate landscape. I don’t think corporate Australia would be bery enamoured with a Federal government non-judicial body confiscating entire controlling interests and single handily dismantling a profitable company that has been built over 30years.
The constitutionality of the TakeOver panel was challenged in 1991.
The full court of the High Court found it to be constitutional but it doesn’t exercise judicial power.
“The validity of the legislation giving the Panel its powers was challenged in Precision Data Holdings Ltd & Ors v Wills Adler and Jooste (1991) 6 ACSR 269. The basis of the challenge was that the Panel's legislation purported to confer judicial powers on the Panel. The Panel received notice of the action on 26 July 1991. The full court of the High Court decided on 24 October 1991 in a unanimous and firm decision that the legislation conferring the Panel's power is constitutional
and that the Panel does not exercise judicial powers in an adjudication of a dispute about existing rights but the Panel creates a new set of rights and obligations following the Panel's consideration of the facts before it based on matters of policy, including commercial policy.”
From my understanding this means that the TakeOver panel is not a Chapter III court under the Australian Constitution.
https://en.m.wikipedia.org/wiki/Chapter_III_Court
“In
Australian constitutional law,
Chapter III Courts are
courts of law which are a part of the
Australian federal judiciary and thus are able to discharge Commonwealth
judicial power. They are so named because the prescribed features of these courts are contained in Chapter III of the
Australian Constitution.”
It actually confuses me as to how the TakeOver Panel can make orders in relation to Australian corporation laws when it has no judicial power? It seems like a system where parties either succumb to the orders made or go to a real court to decide if those orders have been lawfully applied.
Could parties be found in contempt of the TakeOvers panel if it is not a judicial court of law?Eshmun
