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What do you do with a High Court decision you don’t like? Legislative, judicial and academic responses to Gambotto v WCP Ltd
The decision of the High Court of Australia in Gambotto v WCP Ltd was
both 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 the
media 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 corporations
legislation facilitating the compulsory acquisition of shares and limiting the application of Gambotto. We document how courts and Parliament
responded 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 of
the 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 we
observe similarities in how other courts restricted the application of
Gambotto.
both 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 the
media 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 corporations
legislation facilitating the compulsory acquisition of shares and limiting the application of Gambotto. We document how courts and Parliament
responded 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 of
the 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 we
observe similarities in how other courts restricted the application of
Gambotto.
