Hi O&E and also RogerMooreish
Thanks for the legal references. Very respectfully, a couple of points.
O&E, Jubilee Mines NL is a WA Court of Appeal decision, however:
(1) the High Court found an appeal by Special Leave demonstrated no reasonable prospect of success (see P7 of 2009, HCA) refusing the application; and
(2) the decision relates to Commonwealth legislation, ie. Corporations Law; and
(3) it remains good and binding authority, most recently followed in Australian Securities and Investments Commission v Big Star Energy Limited (No 3) [2020] FCA 1442, a decision of the Federal Court of Australia.
I cannot agree with the suggestion that “It would mean that we move from the objective reasonable person test to be a subjective test of what investors in that stock would expect which would, in my view, make it very difficult to enforce the law as it would be based on opinions of shareholders of that stock taken to the extreme.”
Extreme opinions are unlikely to be reasonable, no matter whether they are objectively or subjectively viewed.
Martin CJ expanded upon his remarks made at [34] (cited by Roger) further in the decision at [59]:
[59] “However, in practical terms, it is very difficult to envisage a circumstance in which a reasonable person would expect information to have a material effect on the price or value of securities if the information would not be likely to influence persons who commonly invest in those securities in deciding whether or not to subscribe for, or buy or sell them. The price of securities quoted on a stock exchange is essentially a function of the interplay of the forces of supply and demand. It is therefore difficult to see how a reasonable person could expect information to have a material effect on price, if it was not likely to influence either supply or demand. Rather, on the face of it, the scope of information which would, or would be likely, to influence persons who commonly invest in securities in deciding whether or not to subscribe for, or buy or sell those securities is potentially wider than information which a reasonable person would expect to have a material effect on price or value, because there is no specific requirement of materiality in the former requirement“.
The real issue however is of course not concerning continuing obligations of disclosure- they were clearly met. The issue is whether the announcement was truly price sensitive. The former involves omission. The latter is one of classification.
As identified, the issue is the responsibility of the company, following an ASX recommendation that was implemented on 6 August 2018.
I think Roger’s quote about the “results continue to show” etc is spot on. Had the results not continued as in the past, it would have been price sensitive.
The announcement contained ongoing wonderful news - something we are all in agreement of. That news is almost certainly already factored in the SP.
Enjoyed reading both of your posts, as always.
Best wishes
Go Imugene!
PDS
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