What do you do with a High Court decision you don’t like? Legislative, judicial and academic responses to Gambotto v WCP Ltd

Ramsay, Ian and Saunders, Benjamin 2011, What do you do with a High Court decision you don’t like? Legislative, judicial and academic responses to Gambotto v WCP Ltd, Australian journal of corporate law, vol. 25, pp. 112-149.

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Title What do you do with a High Court decision you don’t like? Legislative, judicial and academic responses to Gambotto v WCP Ltd
Author(s) Ramsay, Ian
Saunders, BenjaminORCID iD for Saunders, Benjamin orcid.org/0000-0003-2379-4395
Journal name Australian journal of corporate law
Volume number 25
Start page 112
End page 149
Total pages 38
Publisher LexisNexis
Place of publication Chatswood, N.S.W.
Publication date 2011
ISSN 1037-4124
Summary The decision of the High Court of Australia in Gambotto v WCP Ltd wasboth controversial and widely debated. Some saw the decision as radically altering the balance of power in corporate law by granting minority shareholders extensive new powers to prevent the compulsory acquisition of their shares and thereby impeding commercial transactions that would benefit companies. There was also concern that the principles developed by the High Court for compulsory acquisition of shares undertaken by way of amendment of the corporate constitution would apply to other forms of compulsory acquisition, and corporate law more generally, again impeding many types of corporate transactions.We analyse the responses to the High Court decision. The decision had the potential to have a significant influence on Australian corporate law and the way corporate transactions involving compulsory share acquisitions are conducted. In particular, Gambotto was considered in more than 50 subsequent judgments giving many judges the opportunity to extend the Gambotto principles into new areas.We show that the responses to Gambotto were largely negative. Initial commentary in themedia and subsequent academic commentary was mostly critical. Almost uniformly, courts decided that the principles should not be extended.Parliament responded by enacting new provisions in the corporationslegislation facilitating the compulsory acquisition of shares and limiting the application of Gambotto. We document how courts and Parliamentresponded to a decision they did not like — a decision that had the potential to have major implications for corporate law and commercial transactions.We also analyse Gambotto by placing it in the broader political context ofthe role of the High Court at the time of the decision. Gambotto was decided when the High Court was in a period of unprecedented judicial activism.Subsequently, the High Court retreated from this judicial activism and weobserve similarities in how other courts restricted the application ofGambotto.
Language eng
Field of Research 180109 Corporations and Associations Law
1801 Law
1501 Accounting, Auditing And Accountability
1503 Business And Management
Socio Economic Objective 940499 Justice and the Law not elsewhere classified
HERDC Research category C1.1 Refereed article in a scholarly journal
ERA Research output type C Journal article
Copyright notice ©2011, LexisNexis
Persistent URL http://hdl.handle.net/10536/DRO/DU:30085900

Document type: Journal Article
Collections: Faculty of Business and Law
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