Australia: Continuous Disclosure: ASX releases consultation draft of substantially revised guidance note
Minter Ellison Alert

By Robert Austin and James Philips

Today, the ASX published a substantially revised and expanded consultation draft of Guidance Note 8, Continuous Disclosure: Listing Rules 3.1-3.1B (GN 8). It also published draft amendments (mostly minor) to the continuous disclosure Listing Rules themselves.

ASX calls for comments on the drafts by 30 November 2012, with a view to finalising the documents as soon as practicable thereafter, and is particularly interested to know if there are matters on which further guidance would be helpful. Major amendments to the published drafts are unlikely, as they are the product of extensive consultation between ASX and ASIC over a period that began in 2010, and ASIC is in broad agreement with the thrust and contents of ASX's proposals. Indeed, since the present draft of GN 8 can be taken to reflect the current views of ASX and ASIC, listed entities would be well advised to adhere to that guidance from now on.

After the uncertainty produced by the James Hardie, Centro and Fortescue Metals cases, GN 8 is good news for listed entities and their directors and officers. It provides clear, practical guidance for those whose objective is to satisfy the legal and Listing Rule disclosure requirements.

GN 8: What are the key messages?

GN 8 is a complete rewriting of the old Guidance Note, now running to 68 pages, replete with footnotes. The length and detail of the document is a response to demands for more comprehensive guidance to assist listed entities to comply. It is full of useful and practical guidance, but given its detail and coverage of technical issues, the primary readers will probably be legal and other professional advisers (internal or external), rather than directors and officers.

ASX has concurrently issued a short draft guide entitled Continuous Disclosure: An Abridged Guide - a more manageable 12-page document. Helpful though this is as an introduction, decisions about disclosure in difficult cases will have to be based on careful reading of the full Guidance Note.

It would be impractical to give a full account here of all of the guidance that GN 8 offers. We have selected the following subjects for discussion:

1. How important is the continuous disclosure requirement to market regulatory strategies?
2. How can you tell if information is material?
3. What does the requirement to disclose 'immediately' really mean?
4. What is the role of trading halts?
5. Does the board need to approve a market announcement?
6. Must you disclose confidential information?
7. How can listed entities facilitate compliance?
8. When will a 'reasonable person' expect disclosure, especially in the context of a confidential approach by a potential bidder?
9. What does GN 8 have to say about earnings guidance and earnings surprises?

After reviewing what GN 8 says about these nine subjects, we will briefly explain the proposed amendments to the Listing Rules.

Note that as well as giving guidance as to the content of the continuous disclosure obligation, GN 8 explains the procedures that ASIC adopts in communications with listed entities and in reporting to ASIC.

The ASX Listing Rules are based on a set of principles set out in the Introduction to the Listing Rules, including a principle requiring timely disclosure of information that may affect security values or influence investment decisions. A listed entity is obliged to comply with the Listing Rules interpreted in accordance with their spirit, intention and purpose, by looking beyond form to substance, and in a way that best promotes the principles upon which they are based (LR 19.2). ASX asserts a discretion whether to require compliance with the Listing Rules in a particular case.

Given these special characteristics of the Listing Rules, guidance on the attitude of ASX to their interpretation is arguably more important than agonising about the objective meaning of the language used. This is why GN 8 is particularly important. Although the Introduction to the Listing Rules says that Guidance Notes should not be regarded as a definitive statement in every case, GN 8 reflects a consensus reached by ASX and ASIC after extensive work, and needs to be taken into account immediately, even though it is only a draft.

(a) The strategic importance of the continuous disclosure listing rules

According to GN 8, compliance with Listing Rule 3.1 is critical to the integrity and efficiency of the ASX market and other markets that trade in ASX quoted securities or derivatives. The reaffirmation of the central importance of the continuous disclosure requirement is significant, as it comes shortly after the High Court's decision in the Fortescue Metals case, seen by some (but not us) as lowering the bar for continuous disclosure by treating a loosely worded, brief and ambiguous market announcement as adequate (see our Alert on Fortescue Metals).

(b) Materiality and content

As the Guidance Note points out, the disclosure obligation is not limited to information generated from within the listed entity, but the information must 'concern' the listed entity and not simply be publicly available information about external events.

Information needs to be disclosed if a reasonable person would expect the information to have a material effect on the price or value of the entity's securities. Under s 677 of the Corporations Act, that depends on whether the information would be likely to influence persons who commonly invest in securities in deciding whether to trade. There has been some controversy about whether 'persons who commonly invest in securities' include high-frequency traders who seek to take advantage of very short term price fluctuations without regard to the inherent value of the security. GN 8 says it does not: persons who commonly 'invest in' securities are those who commonly buy and hold securities for a period of time based on their view of the inherent value of the security.

GN 8 offers a guide to directors and officers of listed entities when faced with the decision on whether to disclose. They should ask two questions:

1. Would this information influence my decision to buy or sell securities in the entity at their current market price?
2. Would I feel exposed to an action for insider trading if I were to buy or sell securities in the entity at their current market price, knowing this information had not been disclosed to the market?

GN 8 provides guidance about the content of market announcements. For example, no doubt reflecting the experience in the recent Fortescue Metals case, ASX sets out the particulars to be announced when a listed entity signs a material contract (further illustrated in Example A in GN 8). It is open to the entity to lodge a copy of the agreement, and that may help reduce the length of the market announcement.

But ASX recognises that there are cases when an entity may well not wish to release the full contract (for example, because it contains commercially sensitive information) and in those cases, the announcement should contain a fair and balanced summary of the material terms of the agreement and include any other information that could affect an investor's assessment.

ASX expressly endorses the importance of distinguishing between statements of fact and statements of opinion in the market announcement (see our discussion of this issue in our Alert on the Full Federal Court's decision in Fortescue Metals). ASIC warns that a forward-looking statement such as earnings guidance or exploration and production targets must have a reasonable basis in fact, or else it will contravene the misleading conduct provisions of the Corporations Act.

GN 8 is supercharged with warnings to the drafters of market announcements, to avoid promotional, emotive, intemperate or tendentious material - generally, to prevent the spin merchants from capturing the process! There are warnings about misleading headers to market announcements.

Announcements must be given to ASX first (Listing Rule 15.7). GN 8 gives some guidance about the limits of its flexibility in administering this requirement. Importantly, if the listed entity has a pressing commercial or legal need to make a market sensitive announcement outside the hours of operation of the ASX Markets Announcement office1 (eg, a major natural disaster affecting the operations of the listed entity where an announcement is required for health and safety reasons and the peace of mind of staff and relatives), the entity should make the announcement in the public media and at the same time provide a copy to ASX so that it is queued for processing when the Market Announcements office re-opens.

(c) 'Immediately' tell ASX

As we have previously noted (see our Leighton Holdings Alert), ASIC issued an infringement notice against Rio Tinto after the company took approximately 70 minutes to request a trading halt and a further 20 minutes to issue an announcement, and against CBA when it allegedly failed to announce information about a deterioration in its loan impairment expense ratio during the last 60 minutes of trading. Those examples suggest a strict interpretation of the word 'immediately' in the Listing Rule. After the Leighton Holdings case, ASIC's Chairman said that "immediately means immediately".

While defending those outcomes, ASX now says in GN 8 that 'immediately' does not mean 'instantaneously', but rather 'promptly and without delay'. ASX reaches this view by relying on a 19th century judicial interpretation of the word 'immediately', in an entirely different context.2 Using the old case is a clever way of shifting ASX's position to a more reasonable focus.

ASX recognises that the speed with which a market announcement can be made will vary, depending on the circumstances. Relevant factors include:

• where and when the information originated;
• the forewarning (if any) the entity had of the information (thus, Rio's information was about an acquisition in the final stages of negotiation, which it should have been ready to disclose as soon as confidentiality was lost);
• the amount and complexity of the information concerned (that might be relevant to, say, disclosure of an earnings surprise);
• the need in some cases to verify the accuracy or bona fides of the information (this presumably responds to the David Jones situation, where the bona fides of the bidder were uncertain);
• the need in some cases to comply with specific legal or Listing Rule requirements (such as compliance with Ch 5 of the Listing Rules for an announcement relating to mining or oil and gas activities); and
• the need in some cases for an announcement to be approved by the entity's board or disclosure committee.

ASX will take these factors into account, and also whether or not the entity has promptly requested a trading halt to minimise the period that the market is trading on an uninformed basis. ASX's acknowledgement that in some cases an important announcement may be deferred until the board of directors can be convened will be particularly helpful in some circumstances.

ASX is in a position to override Listing Rule 3.1 by determining that there is, or is likely to be, a false market in the entity's securities, and to require the entity to give ASX information to correct or prevent the false market (Listing Rule 3.1B, which is given significant attention in GN 8).

(d) Trading halts

ASX's central concern is to protect market integrity by ensuring that trading occurs only when the market is fully informed. It has been evident for some time that ASX and ASIC see trading halts as an important adjunct to the continuous disclosure rule. The temporary suspension of trading can protect investors and give the listed entity some breathing space to prepare a market announcement.

Now GN 8 confirms graphically the full extent of trading halts as part of the regulatory strategy. ASX's concession, that a market announcement is not required instantaneously when the entity becomes aware of market sensitive information, is made on the express basis that if it cannot make disclosure promptly and without delay, the entity will protect market integrity by seeking a trading halt.

A listed entity must give careful consideration to requesting a trading halt if it becomes aware of market sensitive information that needs disclosure:

• during trading hours, and is not in a position to issue an announcement straight away; or
• outside trading hours, if it anticipates it will not be in a position to issue an announcement before trading next commences.

Note the implied acknowledgement that a market announcement might, in some cases, be deferred for a period of a day or more, provided a trading halt is in place. The establishment of a trading halt does not suspend the disclosure obligation, but ASX does not apply the Listing Rules in a technical matter and will seek to promote the market integrity principles upon which they are based:

According to GN 8, ASIC will take the same approach.

Not all announcements will warrant a trading halt. When it receives a request, ASX will usually ask the entity to outline the nature of the information so that it can assess the circumstances. However, ASX will invariably agree to the request if the request is made promptly, and ASIC considers that the information is likely to be market sensitive and that the entity needs time to prepare and issue an announcement.

ASX strongly encourages a listed entity that is unsure about whether it should be requesting a trading halt to cover the time it needs to prepare and release an announcement to the market, to contact its listings adviser at ASX to discuss the situation.

A trading halt leads to obvious disadvantages for investors during its operation. Additionally, the buy/sell pressure that builds up when trading is suspended can distort the market price on resumption. But a trading halt under Listing Rule 17.1 is a temporary measure that does not constitute suspension of the entity's securities, for a period not exceeding the commencement of normal trading on the second trading day following the day on which it is requested. ASX evidently believes that the importance of trading in a fully informed market will normally outweigh these disadvantages. We can expect even greater use of trading halts around market announcements in the future.

(e) Board approval

In the James Hardie case, the trial judge held that since the formation of a foundation to take over the liability of subsidiaries in respect of asbestos claims was a potentially explosive step, the question of what should be stated publicly about the way in which asbestos claims would be handled was within the board's responsibility. ³ On appeal, the High Court agreed that a market announcement of this kind would ordinarily be approved by the board. ⁴ On the other hand, as the NSW Court of Appeal observed in the James Hardie case, not every ASX announcement should or will go before the board. ⁵

In these circumstances, GN 8 says that a listed entity should have suitable arrangements in place to enable market announcements to be issued immediately, including appropriate delegations to senior management to release some announcements of their own accord. In such a case it is common practice for a copy of the announcement to be circulated immediately to the directors by e-mail, and for it to be noted at the next board meeting. GN 8 also advocates establishing a disclosure committee (comprising, say, the chairman of directors, the chief executive officer, the company secretary and the general counsel), that can meet by phone on short notice to consider more significant announcements.

Where an entity considers an announcement to be so significant that it ought to be approved by the full board before release, the entity needs to think carefully about how to manage its disclosure obligations. One issue is whether to request a trading halt. It will not be necessary to request a trading halt if it is the board's decision that generates the market sensitive information (for example, where the information is exempted from disclosure by Listing Rule 3.1A but the board nevertheless determines it is appropriate to make an announcement). But if the market sensitive event has already occurred and the board needs to consider an announcement, the board must be convened promptly and without delay. If the market will be trading before the board meets, the entity should carefully consider whether it needs to request a trading halt.

If there is no trading halt in place, an entity which is awaiting board approval to a market sensitive announcement must monitor the market price of its securities, major national and local newspapers, wire services, investor blogs, social media, and enquiries from analysts or journalists, for signs that the information may have leaked. If in doubt, listed entities should contact their ASX listings adviser.

(f) Confidential information

The general rule is that a listed entity must comply with its disclosure obligations even if it does not appear to be in the entity's short-term interests to do so. A listed entity must comply with its disclosure obligations even if it is party to a confidentiality or non-disclosure agreement.

Generally speaking, any listed entity entering into a confidentiality agreement should insist on an express carve-out to permit the disclosure of information required by law or the Listing Rules. ASIC's opinion is that in the absence of an express carve-out, it is highly likely that one will be implied. ASIC also says a party seeking to enforce a confidentiality agreement to prevent a listed entity making a market announcement may be wrongfully inducing the entity's breach of its listing contract with ASX, and may potentially be liable to civil penalties for involvement in a continuous disclosure contravention (s 674(2A)).

Issues can sometimes arise in relation to the disclosure of commercially sensitive matters, such as the pricing given to a major customer or supplier under a material contract - and this information could be used by the entity's competitors to its detriment.

GN 8 states that ASX has no issue with a listed entity structuring an announcement about a particular transaction to avoid disclosing commercially sensitive matters, provided it includes sufficient information in the announcement to enable the market to assess the impact of the transaction on the price or value of the entity's securities. For example, in many cases it will be sufficient to disclose the expected impact of the material contract on the entity's revenues, expenses or profit, without having to disclose unit prices or sales volumes under the contract.

(g) Facilitating compliance

GN 8 gives some practical guidance about the steps a listed entity should take to facilitate compliance. For example:

1. have a template letter of request to ASX for a trading halt ready to use at all times;
2. have a template announcement ready when a confidential transaction is under negotiation, so that it can be issued straight away if there is a leak;
3. prepare a draft announcement ahead of time, when there is advance notice of a disclosure event;
4. if the disclosure event is within the entity's control, be sensitive to the hours when the markets are trading and, where possible, try to ensure that the event occurs and the announcement is made before trading commences or after trading has closed, so it is not necessary to request a trading halt (it is therefore perfectly acceptable for a listed entity to arrange the signing of a material agreement, and the market announcement about it, at a convenient time before the markets have opened or after they have closed);
5. ensure that the person appointed under Listing Rule 12.6 to be responsible for communications with ASX has the necessary organisational and business knowledge, and is readily contactable by ASX by telephone during normal market hours and for at least one hour on either side. ⁷

On the last point, ASX warns that if it is not able to contact the entity's nominated representative, or the representative does not have the knowledge or authority to address the issue promptly, ASX may have little option but to suspend quotation of the entity's securities.

(h) The 'reasonable person' test, and confidential approaches by potential bidders

GN 8 contains a detailed discussion of the scope and meaning of the exceptions to immediate disclosure in what is now Listing Rule 3.1A.3. There are five exceptions (including information concerning an incomplete proposal negotiation, matters of supposition or matters insufficiently definite to warrant disclosure, and information generated for internal management purposes). But in each case, the information must remain confidential (Listing Rule 3.1A.2) and a reasonable person must not expect it to be disclosed (Listing Rule 3.1A.1). GN 8 recommends that listed entities should have in place suitable and effective arrangements to preserve confidentiality.

Recently, much attention has been focused on the 'reasonable person' test, particularly in light of the infringement notices and enforceable undertakings regarding Leighton Holdings (see our Alert). There, ASIC took the view that internal management information and relatively indefinite information regarding three projects should have been disclosed to the market immediately, even though there was insufficient time to assess with any precision the overall impact of the information on the group's earnings guidance.

On that subject, GN 8 now says that if a known circumstance can reasonably be expected to have a material effect on the price or value of an entity's securities, but it may take time for the entity to put a figure or estimate on the financial impact, Listing Rule 3.1 will generally require immediate disclosure of the information. Sometimes it is appropriate to make an interim announcement.

According to GN 8, the general rule is that a reasonable person would not expect disclosure of confidential information falling within one of the five exception categories. But that rule can be displaced by the circumstances of the case.

For example, where a listed entity is in financial difficulties, a reasonable person may well expect disclosure of material negative information immediately (see also Example H1 in GN 8). However, ASIC recognises that disclosure in those circumstances can be an impediment to completing a financial restructuring necessary for the entity's survival.

The proper course for the entity is not to disregard its continuous disclosure obligations, but rather to approach ASX to discuss the possibility of a trading halt or voluntary suspension. In certain exceptional situations, ASX may agree to suspend quotation although the entity is in a position to make an announcement about its restructure negotiations that would reasonably inform the market as to their current status. ASX would need to be satisfied that continued trading would be likely to materially prejudice the entity's ability to successfully complete a complex transaction or series of interdependent transactions critical to the entity's continued financial viability.

Some law firms have recently been advising that if a potential target board receives a confidential non-binding approach from a potential bidder for control, the 'reasonable person' now expects that the information must be disclosed immediately, even if disclosure may destroy the proposal's prospects. GN 8 makes it clear that ASX (with ASIC's support) does not share that view.

ASX considers a reasonable person would not expect the following to be disclosed under Listing Rule 3.1A.3:

• confidential information that an entity is planning to make a unilateral takeover bid for another entity;
• confidential information that an entity has received an offer from another entity to enter into a control transaction.

In each case, ASX considers that premature disclosure of the information could jeopardise the transaction, which in turn could prejudice the interests of investors in both the entity and the target (see also Examples B, H2, H3 and H6 in GN 8).

Example H6 says if a listed entity is already subject to a hostile takeover offer, and then receives an indicative, confidential approach from another company potentially at a better price, the new approach should be disclosed to the market – even if the offer may be withdrawn if disclosed. Shareholders need to make a decision whether or not to accept the existing takeover offer, and therefore a reasonable person would expect the target to disclose that it has received a potentially higher offer.

Additionally, ASIC takes the view that a reasonable person would not expect disclosure of confidential legal advice concerning litigation in which a listed entity is or could be involved. Disclosure could result in loss of legal professional privilege in the advice, and consequently prejudice the legal position of the entity and its investors (see also Example E in GN 8).

(i) Earnings guidance and earnings surprises

The old Guidance Note 8 contained detailed and somewhat controversial guidance in this field. It said that as a general policy, a variation in excess of 10-15% may be considered material and should be announced as soon as the entity becomes aware of it. In some cases, it said, a listed entity should disclose material variations from analysts' consensus forecasts and expectations. This part of the old Guidance Note has been abandoned and replaced by new, significantly different text.

GN 8 does not discourage listed entities from providing periodic or one-off earnings guidance to the market, although it warns that earnings guidance must have a reasonable basis in fact, or else it will be deemed to be misleading and contrary to the Corporations Act. ASX also warns that a listed entity that has not given earnings guidance should be careful in communications with shareholders, analysts and the press. Statements such as that the entity is 'comfortable' with analysts' forecasts, or that it expects its earnings to be 'in line with' the corresponding prior period, amount to de facto earnings guidance. ASX might insist on a confirming market announcement.

All other things being equal, a listed entity's earnings for a reporting period are not required to be reported to the market until the due date for release of that information. But for many listed entities, the market's expectations of its earnings over the near term will be a material driver of the price or value of its securities.

Those expectations may have been set by earnings guidance, earnings forecasts by analysts producing a 'consensus' estimate (for large entities), or (for smaller entities) earnings results of the prior corresponding reporting period. Importantly, market expectations may and usually will exist regardless of what information the listed entity has put into the market.

GN 8 says that if an entity becomes aware that its earnings for a reporting period will materially differ (downwards or upwards) from the market's expectations, it needs to consider carefully whether it is obliged to notify the market of that fact.

If market sensitive information comes to hand during the course of preparing financial statements for a reporting period, a market announcement may need to be made promptly, without waiting for publication of the financial results. The obligation to do so may arise under Listing Rule 3.1, reinforced by s 674 of the Corporations Act. This guidance is flexible, and gives room to a listed entity to assess the real drivers of the market price and value of its securities, having regard to the long and short-term aspects of its business plan, and considerations relating to cash flow as well as AIFRS profit or loss.

If, however, specific earnings guidance has been given to the market, a correcting announcement may be necessary (in ASX's view) to avoid misleading conduct under s 1041H (presumably, misleading conduct by silence). ASX sees an important difference between a case where specific earnings guidance has been put into the market, and a case where the market expectation has been conditioned by other factors (see also Example F in GN 8).

What is a material difference for disclosure purposes? A continuous disclosure obligation will only arise if the difference between earnings and the market's expectation is such that a reasonable person would expect it to have a material effect on the price or value of the entity's securities. This requires consideration of several factors:

• whether near-term earnings is a material driver of the market value of the entity's securities;
• whether the differences is attributable to a non-cash item (such as depreciation, amortisation or an impairment charge) that may not impact on underlying cash earnings;
• whether the difference is a permanent one or simply due to a timing issue;
• whether the difference is attributable to one-off or recurring factors; and
• whether the relative outlook for the entity in coming financial periods is positive or negative.

GN 8 does not lay down a general rule, given the many variables involved. However, where an entity has published specific guidance and expects its earnings to differ materially from that guidance, in ASX's view liability for misleading conduct under s 1041H may be an issue, and in that case the threshold for disclosure could be lower than the disclosure threshold under Listing Rule 3.1. In that case ASX recommends that the entity should apply the guidance on materiality found in the Australian Accounting and International Financial Reporting Standards (AASB 1031):

• an expected variation from published earnings guidance equal to or greater than 10% should be presumed material; but
• an expected variation equal to or less than 5% should be presumed not to be material;

unless in either case there is evidence or a convincing argument to the contrary.

The accounting standards also become relevant where ASX suspects that a listed entity has committed a significant contravention of the Listing Rules. In deciding whether to refer the matter to ASIC, ASX will consider whether the market has moved by 10% or more, in which case the matter will be referred to ASIC. If the price movement is 5% or less, ASIC will usually regard the information as not market sensitive and will not refer the matter to ASIC.

Reassuringly in the wake of the Leighton Holdings infringement notices, ASX expresses the view that the disclosure obligation does not arise unless there is a reasonable degree of certainty that there will be a material variance between earnings and market expectations. The fact that an entity's earnings may be materially ahead of or behind market expectations part way through a reporting period does not mean that this situation will prevail at the end of the reporting period. The question ultimately comes down to a matter for judgment by the entity.

ASX does not now believe that a listed entity has any obligation, whether under the Listing Rules or otherwise, to correct analysts' forecasts to bring them into alignment with its own, although it is in the entity's interest to explore with the analysts why that might be so (see also Example G in GN 8).

Proposed Listing Rule amendments

For the most part, the proposed changes to the text of the Listing Rules are relatively minor, compared with the very significant revision of the Guidance Note.

The most significant proposed changes can be summarised briefly as follows:

• the examples of potentially disclosable information given in bullet points under Listing Rule 3.1 will be revised;
• the order of the exceptions in Listing Rule 3.1A will be reversed to 'de-emphasise' the 'reasonable person' test - to make it clear that this is a last order, rather than a first order requirement;
• Listing Rule 3.1B (false market) will be revised so that the listed entity's obligation will be to provide the information that ASIC asks for rather than the information 'needed' to correct or prevent a false market;
• a definition of 'information' will be added, modelled on s 1042A; and
• new specific disclosure requirements will be introduced in Chapter 3.

As to those new specific disclosure requirements, a listed entity will be required to notify ASX immediately:

• if it deactivates or reactivates a dividend or distribution plan;
• of the material terms of any employment, service or consultancy agreement it enters into with its chief executive officer or a director or other person or entity who is related party of the entity, and also any variation to such an agreement;
• of notices received from security holders calling for or requisitioning a general meeting or proposing a resolution at a general meeting;
• of information obtained about the ownership or control of securities obtained under Part 6C.2 of the Corporations Act or any equivalent overseas requirements;
• if the entity was established outside Australia, of any change to the law of its home jurisdiction that materially affects the obligations of security holders; and.
• if it declares a dividend or distribution or makes a decision that a dividend of distribution will not be declared.

Conclusions

GN 8 introduces a new chapter of continuous disclosure regulation in Australia. It is full of helpful, practical guidance. Unfortunately, but necessarily, it is also quite technical and detailed. It will provide the directors and officers of listed entities with guidance and some comfort, but the need for them to obtain internal and external advice will, if anything, be increased.

Our team at Corporate HQ Advisory is available to assist, for example by presentation to your board or senior management, or any other guidance you may need.

Footnotes

¹ 7:30 am to 7:30 pm AEST (8:30 pm during daylight saving) on each trading day.

² ASX relies on three cases, the facts of which are remote from the Listing Rule context. Queen v Berkshire Justices (1879) 4 QBD 467, 471 concerned a requirement that 'immediately' after lodging an appeal against a summary conviction, the appellant must enter into recognizances, and it was held that four days later was adequate compliance. Measures v McFadyen (1910) 11 CLR 723, 736 concerned a covenant by a lessee to carry out building improvements 'forthwith', and it was held that performance over a period of 21 months did not comply. Dorsman v Nichol (1978) 20 ALR 231, 237 concerned a requirement that a breathalyser test be administered immediately after an alcohol control procedure, and it was held that a test administered 5 minutes later did not comply. Many more cases could have been cited, without greater enlightenment. Clearly everything depends on the purpose of the rule requiring immediate compliance, and its context.

³ [2009] NSWSC 287, at [333].

⁴ [2012] HCA 17, at [56].

⁵ [2010] NSWCA 331, at [808].

⁶ Announcements before the market opens at 10:00 am should be submitted prior to 9:30 am AEST. An announcement to be released prior to market close at 4:00 pm should be submitted prior to 3:40 pm AEST.

⁷ Where the entity is based in Western Australia, the nominated person must be available to take calls from ASX on trading days as early as 6:00 am during the summer time, and for entities based in New Zealand, until as late as 7:00 pm local time.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.