Australian Securities and Investments Commission v Big Star Energy Limited (No 3)

• Jurisdiction: Australia Federal only
• Judgment Date: 09 October 2020
• Neutral Citation: [2020] FCA 1442
• Court: Federal Court
• Date: 09 October 2020

Federal Court of Australia

Australian Securities and Investments Commission v Big Star Energy Limited (No 3) [2020] FCA 1442

File number:	WAD 588 of 2017
Judgment of:	BANKS-SMITH J
Date of judgment:	9 October 2020
Catchwords:	CORPORATIONS - continuous disclosure obligations - s 674 of the Corporations Act 2001 (Cth) - ASX Listing Rule 3.1 and Rule 3.1A - where listed public company announced to market that it had entered into two sale agreements of significant assets - where company did not disclose identity of purchaser - whether company had assessed prospect of purchaser completing under the sale agreements - whether company obliged to disclose if it had not made that assessment - where purchaser had advised company that it did not have financial approval in place for both sale agreements - whether company obliged to disclose information - where non-disclosed information not generally available - whether non-disclosed information was material - whether company contravened s 674(2) of the Corporations Act ; CORPORATIONS - materiality of non-disclosed information a matter for expert evidence - consideration of identity of relevant investors - consideration of how relevant investors determine whether to acquire or dispose of securities - consideration of what influences investors in deciding whether to acquire or dispose of securities - consideration of whether non-disclosure of information was material - challenge to witness's expertise ; CORPORATIONS - whether director of company contravened s 674(2A) of the Corporations Act - whether director knowingly concerned in contravention by company of s 674(2) - consideration of state of knowledge that must be established before a person is knowingly concerned in a contravention for the purpose of s 674(2A) - whether actual knowledge required ; CORPORATIONS - whether director of company contravened s 180(1) of the Corporations Act by failing to exercise care and diligence in causing or permitting company to contravene s 674(2) - whether s 180(2) business judgment rule applies ; EVIDENCE - drawing of inferences in absence of direct evidence - where second defendant does not give evidence - application of rule in Jones v Dunkel in civil penalty proceedings
Legislation:	Corporations Act 2001 (Cth) ss 79, 180, 674, 675, 676, 677, Part 7.2A Evidence Act 1995 (Cth) ss 69, 71, 76, 79, 140, 144
Cases cited:	Adams v Director of the Fair Work Building Industry Inspectorate [2017] FCAFC 228; (2017) 258 FCR 257 Adler v Australian Securities and Investments Commission [2003] NSWCA 131 Australian Competition and Consumer Commission v Air New Zealand Limited [2014] FCA 1157 Australian Competition and Consumer Commission v Air New Zealand Limited (No 7) [2013] FCA 83; (2013) 209 FCR 361 Australian Competition and Consumer Commission v Olex Australia Pty Ltd [2017] FCA 222 Australian Competition and Consumer Commission v TF Woollam & Son Pty Ltd [2011] FCA 973; (2011) 196 FCR 212 Australian Securities and Investment Commission v Rent 2 Own Cars Australia Pty Ltd [2020] FCA 1312 Australian Securities and Investment Commission, in the matter of Padbury Mining Limited v Padbury Mining Ltd [2016] FCA 990 Australian Securities and Investments Commission v Avestra Asset Management Limited [2017] FCA 497 Australian Securities and Investments Commission v Fortescue Metals Group Ltd (No 5) [2009] FCA 1586 Australian Securities and Investments Commission v Fortescue Metals Group Ltd [2011] FCAFC 19; (2011) 190 FCR 364 Australian Securities and Investments Commission v Macdonald (No 11) [2009] NSWSC 287 Australian Securities and Investments Commission v Mariner Corporation Limited [2015] FCA 589; (2015) 241 FCR 502 Australian Securities and Investments Commission v Maxwell [2006] NSWSC 1052 Australian Securities and Investments Commission v Rich [2009] NSWSC 1229 Australian Securities and Investments Commission v Vines [2005] NSWSC 738 Australian Securities and Investments Commission v Vocation Limited (in liq) [2019] FCA 807 Australian Securities and Investments Commission v Westpac Banking Corporation (No 2) [2018] FCA 751; (2018) 266 FCR 147 Australian Securities and Investments Commission, in the matter of Sino Australia Oil and Gas Limited (in liq) v Sino Australia Oil and Gas Limited (in liq) [2016] FCA 934 Bradshaw v McEwans (1951) 217 ALR 1 CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390 Chamberlain v The Queen (No 2) (1984) 153 CLR 521 Commonwealth Bank of Australia v Kojic [2016] FCAFC 186; (2016) 249 FCR 421 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466 Currie v Dempsey (1967) 69 SR (NSW) 116 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 Fysh v The Queen [2013] NSWCCA 284 Gett v Tabet [2009] NSWCA 76 Grant-Taylor v Babcock & Brown Limited (in liq) [2015] FCA 149 Grant-Taylor v Babcock & Brown Limited (in liq) [2016] FCAFC 60; (2016) 245 FCR 402 Hamilton v Whitehead [1988] HCA 65; (1988) 166 CLR 121 Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 Hurd v Zomojo Pty Ltd [2015] FCAFC 148 James Hardie Industries NV v Australian Securities and Investments Commission [2010] NSWCA 332 Jones v Dunkel (1959) 101 CLR 298 Jubilee Mines NL v Riley [2009] WASCA 62; (2009) 40 WAR 299 Lardil, Kaiadilt, Yangkaal, Gangalidda Peoples v State of Queensland [2000] FCA 1548 Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705 Manly Council v Byrne [2004] NSWCA 123 Masters v Lombe (Liquidator); In the Matter of Babcock & Brown Limited (In Liq) [2019] FCA 1720 McGrath v HNSW Pty Limited [2014] FCA 165; (2015) 219 FCR 489 Medical Benefits Fund of Australia Limited v Cassidy [2003] FCAFC 289; (2003) 135 FCR 1 Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 Noske v The Queen [2017] WASC 56 Payne v Parker [1976] 1 NSWLR 191 Propell National Valuers (WA) Pty Ltd v Australian Executor Trustees Limited [2012] FCAFC 31; (2012) 202 FCR 158 Quinlivan v Australian Competition and Consumer Commission [2004] FCAFC 175; (2004) 160 FCR 1 R v Fysh [2012] NSWSC 1266 Rural Press Limited v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53 Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213; (2002) 118 FCR 236 Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152 The Bell Group Ltd (In liq) v Westpac Banking Corporation [No 9] [2008] WASC 239; (2008) 39 WAR 1 TPT...