HCA: James Hardie directors liability & their general counsel

I refer you to the summary of these decisions:

Shafron v Australian Securities and Investments Commission [2012] HCA 18 (3 May 2012)

 (PDF32K)

And in particular the following may be construed from wording in s.9 paragraph (b)(i) “who makes,  or participates in making, decisions that affect the whole, or a  substantial part, of the business of the corporation”  (underlining added):

a)      emphasis is placed on the role of the person making the decision. It is not necessary to demonstrate ultimate control [22];

b)      the role the person plays in the corporation, which is not limited to their description or other roles [23];

c)      omissions to advise or act will be considered by reference to “how a reasonable person occupying the same office and having the same responsibilities would exercise the powers and discharge the duties of that office” [24];

d)     “…sub-par (i) of par (b) distinguishes between making decisions of a particular character and participating in making those decisions… the idea of “participation” directs attention to the role that a person has in the ultimate act of making a decision, even if that final act is undertaken by some other person or persons. The notion of participation in making decisions presents a question of fact and degree in which the significance to be given to the role played by the person in question must be assessed.” [26].

 

Australian Securities and Investments Commission v Meredith Hellicar & Ors[2012] HCA 17 (3 May 2012)
(PDF 35K)

Brisbane Barrister – David Cormack

 

 

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