Australia: Do takeovers panel teams need new skills?

Last Updated: 8 October 2013
Article by Jeremy Wickens and David Jewkes

Teams straying into Takeovers Panel territory may need to develop new skills following recent changes.

The changes will impact commercial principals, in-house counsel and their corporate advisers when they are before the Panel or contemplating dealings that may spark Panel applications, such as hostile takeovers, potential associations or other contentious corporate control actions.

Panel teams must now be prepared for 'conferences', which are face-to-face inquisitions by the Panel of the key commercial actors.

Conferences bring a new set of challenges for Panel teams. In contrast to the usual Panel process of lawyer-driven written submissions, commercial principals will be required to respond to Panel interrogation in person. This may expose them to tests of their credibility, understanding of issues and consistency of submissions.

What has changed?

The Panel has long had the power to require a conference. However, from the time the Panel was revitalised in 2000 it initially only held a handful of conferences and from 2001 it has held none at all.

Following changes to ASIC Regulations the Panel is:

  • no longer required to create transcripts of conferences
  • clearly able to use teleconferencing, meaning the Panel members and participants need not travel to join a physical meeting.

Although the changes may seem insignificant, prior to the changes the Panel may have felt constrained from calling conferences where the potential participants were in disparate locations in Australia or overseas. The changes also greatly reduce the administrative burden of conferences. The Panel membership and executive have driven the changes, indicating the Panel itself is seeking a greater use of conferences in appropriate circumstances.

The changes will not effect a wholesale shift in Panel procedures: the Panel will not use conferences with the same frequency as oral testimony is required in courts. The Panel will stay true to its directive to move away from a court model. We expect the Panel will use conferences selectively.

The few conferences held initially were all to determine discrete points in proceedings. In Vincorp Wineries Ltd [2001] ATP 6, the conference was for the Panel to better understand the bidder's business before making a decision about what information would be desirable to include in the bidder's statement. In Pinnacle VRB Ltd 09b [2001] ATP 26, the conference was to explain the Panel's decision and give an opportunity to make oral submissions on final orders.

We expect a return to this limited use of conferences and that they will be appropriate where outcomes rest on credibility, such as for denials of alleged association, or to clarify inconsistencies in submissions.

New skills required

Conferences can be called on short notice, meaning advance preparation can advantage Panel teams. Our tips follow.

  • Ensure commercial principals attend
  • The Panel may draw adverse inferences from failure to attend. It will be difficult to justify non-participation in a teleconference, so Panel teams need to engage with the relevant people within the client, however senior, to ensure they attend if required.

  • Brief your speakers on core arguments
  • The Panel's historical reliance on written submissions has allowed commercial principals to rely heavily on their advisors and not necessarily have a strong understanding of the issues before the Panel. While an in-depth knowledge of the legal principles will not be necessary, Panel teams may be advantaged when their speakers can display a strong understanding of the facts and core arguments.

  • Brainstorm likely inquiries
  • Panel teams will perform best when they anticipate the Panel's questions. Brainstorming possible inquiries and ensuring speakers are armed with factual responses will allow Panel teams to present their cases fully.

  • Don't lie to the Panel
  • Panel teams must explain to their speakers the seriousness of their conduct before the Panel. Imprisonment, 'contempt of Panel' and other sanctions apply to giving false or misleading information or obstructing Panel proceedings. Although conferences do not impose higher standards than expected in written submissions, written submissions, calmly prepared and carefully reviewed, represent much less danger to individuals than does being put on the spot in a conference context.

  • Confidence may win the day
  • The Panel does not share the courts' history of oral testimony. Although there are distinguished litigators amongst its membership, the Panel at large cannot be expected to have the experience of judges at assessing oral testimony and testing credibility. Panel teams who confidently assist the Panel through the novelty of conferences may realise subtle advantages.

  • Add conferences as a new weapon in your Panel arsenal
  • Whether to request a conference and how to support the request will now be a more usual part of Panel applications. A party requesting a conference must indicate why a conference is desirable, which may prove a difficult hurdle to overcome.

Recently, in World Oil Resources Limited [2013] ATP 1, a conference was requested but refused because the Panel was not satisfied it would add anything to the written submissions, noting that one of the key participants was not available to attend and there did not appear to be any likelihood of additional probative material coming to light.

The Federal Court in Tinkerbell Enterprises Pty Limited as Trustee for The Leanne Catelan Trust v Takeovers Panel [2012] FCA 1272 confirmed that a request does not oblige the Panel to hold a conference. Parties believing a conference would play in their favour should plan to marshal powerful reasons to support their request.

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.

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Jeremy Wickens
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