Watch this space: James Hardie and FMG in the High Court

Articles Written by John Keeves (Partner), Damian Reichel (Partner)

The High Court will soon rule on two key corporate and securities law decisions. In each case, Acumen has reported on the lower Court decisions (May 2011).

James Hardie

The High Court heard the James Hardie appeals in late October and reserved its decision. Issues on which the High Court is expected to opine will include:

  • whether the General Counsel was acting as a company "officer" (under the Corporations Act) and, if so, the standard required of him;
  • whether failure by ASIC to call a witness breached an obligation of fairness in conductions a civil penalty proceeding;
  • whether the NSW Court of Appeal erred in not finding that the James Hardie Board approved the crucial ASX release, that is, what weight should be given to the minutes approved by the James Hardie Board recording the approval of the ASX release.


FMG is, as yet, unheard. The appeals will consider, among other things:

  • what a statement about the terms and legal effect of a contract should ordinarily be taken to convey;
  • whether an honest and reasonable statement about the effect of a contract can be misleading and deceptive conduct;
  • the availability of the "business judgement rule" in relation to breaches of the continuous disclosure regime.

We will await the outcome of these cases with interest and will report in forthcoming editions of Acumen.

Important Disclaimer: The material contained in this article is comment of a general nature only and is not and nor is it intended to be advice on any specific professional matter. In that the effectiveness or accuracy of any professional advice depends upon the particular circumstances of each case, neither the firm nor any individual author accepts any responsibility whatsoever for any acts or omissions resulting from reliance upon the content of any articles. Before acting on the basis of any material contained in this publication, we recommend that you consult your professional adviser. Liability limited by a scheme approved under Professional Standards Legislation (Australia-wide except in Tasmania).

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