In Aurora Funds Management Ltd v Australian Government Takeovers Panel (Judicial Review)  FCA 496 (17 April 2020) the court dismissed an application for judicial review of a decision of the Australian Government Takeovers Panel (panel).
The applicant had sought judicial review of the panel’s finding that the applicant and another listed entity (Keybridge Capital Ltd (Keybridge)) were ‘associates’ within the meaning of s12(2) of the Corporations Act 2001 (Cth) and its determination that there were unacceptable circumstances under s657A of the Corporations Act 2001.
An additional ground raised was a reasonable apprehension of bias in relation to the sitting president of the panel, Mr Ian Jackman SC. The issues before the panel were the extent to which the applicant and Keybridge were ‘associates’ and whether the degree of influence exercised over them by a Mr Bolton was itself a separate basis for concluding that there were ‘unacceptable circumstances’. It was based on events largely between October 2016 and June 2017. Many years earlier, Mr Bolton was involved in a commercial dispute that led to a proceeding in the Supreme Court of New South Wales (the Supreme Court proceeding) against a number of defendants over the affairs of a unit fund on the ASX, the Brookfield Prime Property Fund (the fund). This had nothing to do with the parties or persons before the panel, however Mr Bolton was a common integer in both. In 2015, a company associated with Mr Bolton commenced the Supreme Court proceeding against a number of defendants over the affairs of the fund including its trustee, Brookfield Multiplex Capital Management Ltd (Brookfield). Brookfield retained King & Wood Mallesons (KWM) to act on its behalf in the Supreme Court proceeding and in November 2015 they delivered a first brief in the proceeding to Mr Jackman SC. The court found that Mr Jackman SC in fact did no work on the first brief (at -). Mr Jackman SC was contacted by the panel in late May 2017 to see if he would be available to form part of a panel. Mr Jackman’s evidence was that the Supreme Court proceeding simply did not cross his mind in May 2017 when the panel contacted him (at ). The panel’s decision was on 14 June 2017 (at ) and its decision effectively rejected sworn evidence of Mr Bolton (at ). In February 2019, KWM delivered a fresh second brief in the Supreme Court proceeding to Mr Jackman SC and he performed work pursuant to that retainer (at ). On the facts as the court assumed them to be, Mr Jackman was briefed for Brookfield in the Supreme Court proceeding while serving on the panel but he had never done any work on the brief and he had no knowledge of the role or company associated with Mr Bolton in that proceeding (at ).
The court applied the accepted principles, in particular the test from Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (at -). The court held that the test for apprehended bias in Ebner was not satisfied. Perram J stated at : “The result of the Panel’s deliberations could have no impact on the issues in the Supreme Court Proceeding and Mr Jackman SC had no knowledge either that Mr Bolton would be called in the Supreme Court Proceeding or any proposal to traduce his credit should he do so. Consequently, an apprehension of bias does not arise.”