In ASIC v Hellicar  HCA 17, the appeal made by the Australian Securities and Investment Commission was unanimously upheld by the High Court. This appeal was made in the text off the civil penalty proceedings that have been initiated against the 7 nonexecutive directors of the James Hardie Industries Ltd. It was found by the court that all these directors have breached their duties that they were required to follow in accordance with s. 180, Corporations Act, 2001 as they had failed to exercise due care and diligence by acting as the directors of the company. The brief facts of this case are related with the attempts made by the James Hardie Industries Ltd. (JHIL) as the company tried to separate two wholly owned subsidiaries. The names of these two were James Hardie & Coy Pty Ltd and Jsekarb Pty Ltd. Both of these companies had to face the claims for damages due to the personal injuries suffered by the individuals who had come in contact with the asbestos products of these companies. In order to achieve the separation of these two subsidiaries, JHIL was going to establish a foundation, the MCRF that was going to manage and pay the claims for the diseases related with asbestos. This foundation was also going to conduct research regarding the causes and treatment for the disease is caused by asbestos. The two subsidiary companies, Coy and Jsekarb were going to make a deed of Covenant and indemnity with James Hardie Industries Ltd. According to it, these two companies would make no claim against and indemnify James Hardie regarding all its liabilities related to asbestos claims. In return, James Hardie was going to pay an amount of money to these two companies over a period of time. In this way, it was decided that a new company was going to be incorporated in the Netherlands under the name of James Harvey Industries NV. This company was going to become the immediate holding company of James Hardie Industries Ltd. as well as the ultimate holding company of the group.
Under these circumstances, the board of James Hardie Industries Ltd. met on 15 February, 2001. The purpose was to consider the proposal of separation. The events that took place at the meeting of the board were the subject of the eventual proceedings at the High Court. A number of matters were recorded at the minutes of the meeting. These matters are related with the separation proposal. A resolution was also passed by the board of the company in this meeting. This resolution provided that it is in their best interest of the company to effect the separation of Coy and Jsekarb. At the same time, several other resolutions related with the separation were also passed. It was also said in the meeting that sufficient funds were available with the foundation, MCRF to deal with all the legitimate claims of compensation that can be anticipated in future. It was also stated that the directors of the company had determined the level of funding. That was needed by the foundation and they were satisfied that the foundation has sufficient funds available with it. However, ultimately it was found that sufficient funds were not available with the foundation, MCRF. It was discovered during the trial and by the Court of Appeal that when these statements were made in February, 2001, it should have been clearly known to the directors of James Hardie that the statements made regarding the availability of funds with the foundation were in fact misleading. However, this was not the issue before the High Court. On the other hand, the main issue before the High Court was if it should have been found by the Court of Appeal, as it did, that the ASIC had failed in establishing that a draft of announcement made by the company to the ASX had been tabled at the meeting of the board, held in February, and it had not been established that the draft had been approved by the directors.
On the other hand, the directors of the company argued that the draft announcement was not tabled at the board meeting held in February.. For this purpose, they impugned the accuracy of the minutes of the meeting. However, this contention of the directors was rejected by the High Court. In fact, the Court noted that the "arguments of the respondents that the February and April minutes of the meeting were false, in relevant respects, were the arguments, if accepted, may go to the extent of demonstrating that the respondents had failed to take the steps that are necessary for making sure that the minute books of the company were in fact, not false or misleading". It was held by the High Court that finding out the presence of other inaccuracies in the minutes did not result in establishing that the relevant parts of the minutes were not accurate. It is not necessarily implied by the fact that the minutes of the meeting were prepared in draft before the meeting was held, that these minutes did not provide a true record of what has taken place during the meeting. Even so, subsequently the boat and adopted the minutes as the true record of what has taken place.
Another major issue present before the court was related with the failure of the ASIC in the Court of Appeal to call Mr. Robb, the external solicitors of James Hardie, as a witness as he had attended the meeting. While it was indicated by the Court of Appeal that a duty was present on part of the ASIC to call Mr. Robb, this was rejected by the High Court. It stated that neither the source of a duty of this nature, not the source of the rule, that has been claimed to be applicable in case of the breach of such duty, has been sufficiently identified by the Court of Appeal or in the arguments made before this Court. Ultimately, the court stated that by not calling Mr. Robb by the ASIC, there was no unfairness caused to the respondents or to the other defendants.
In this way, the judgment delivered by the Court of Appeal was overturned by the High Court that ASIC could not satisfy the burden of proof that the draft announcement made to the ASX was tabled and approved during the board meeting held in February, 2001. The Court stated that the minutes of the board meeting for the formal record of what has occurred during the meeting, and therefore, need to be considered as the evidence of the truth of the matters that were recorded by them, particularly that a draft ASX announcement has been tabled and approved in this meeting. It was also helped by the court that the submission made by the respondents. According to which the minutes were inherently unreliable due to the fact that they had been prepared before the board meeting took place in February, and there were several inaccuracies present in these minutes, had been rejected by the High Court. It was stated by the Court that it would be "too great a coincidence" that not even one person who was present during the April meeting, in which the minutes of the February meeting with adopted, could notice that there was a resolution presented in these minutes, which to their knowledge, was not passed. Therefore, the High Court stated that in view of the case made by the respondents themselves, this would have been a glaring blunder or even worse than the blunder that a vitally significant resolution had been recorded, which never took place.
Moreover, evidence was present with suggested that the draft announcement made before the ASX was circulated during the meeting as it was found by Mr. Robb, as well as revealed by the files of BIL Australia Pty Ltd., which has a large shareholding in James Hardie and two nonexecutive directors who were closely associated with this company, were present at this meeting.
A similar view was taken by the High Court regarding the announcement made to the ASX itself by the company. The court noted in this regard that while some differences were present between the draft that was held to be tabled during the meeting of the board held in February, the amendments that have been made to this draft announcement were properly described as being textual instead of being substantive, were not substantial, and the misrepresentations that have been made in the two, were the same. It was stated by the High Court that, "whether a deed that has been exhibited later on or an announcement that has been published later on, is the document that has been approved by the board, needs to be decided with the help of more than a little comparison between the two texts. It is possible to correct some slips and errors (ASIC v Rich, 2009). There are some cases, where it is possible to adopt a better but different wording. Hence the court stated that only due to the fact that some small changes have been made, would at worst, "reveals no more that the individuals who made these changes did not have the authority to do so and in this case, it does not reveal that the company had not approved the draft announcement made to the ASX.
Another factor was noted by the High Court in its decision was that when later on, the ASX announcement had been circulated, none of these persons had protested or demurred as to the terms of the announcement (Morley v ASIC, 2010). The court held this fact to be consistent with the finding that the board had approved the draft announcement made to the ASX. Regarding the 'novel' finding of the Court of Appeal that as a result of the failure to call Mr. Robb, the cogency of the evidence produced by the ASIC has been diminished, while it was admitted by the ASIC that a general obligation was present on its path to act fairly, it was held by the High Court that the Court of Appeal failed to identify the source of such duty to call particular evidence. Similarly, the source of the rule that was plain to apply in case of the breach of such duty was also not identified. The High Court stated that even if such duty was present, it can be expected that the remedy would be present either in the primary judge directing the ASIC to cause avoidable with this or to say the proceedings, until the same was done by the ASIC, or if the trial had gone to verdict. In an appellate court, considering if there was a miscarriage of justice, which required a retrial.
In this way, the High Court had rejected the reliance of the Court of Appeals on the principles provided in Blatch v Archer (1774) (where it was held that goes against needs to be considered in accordance with the proof that was in the power of a party to be produced) and also Jones v Dunkel (1959) (where it was mentioned that any unexplained failure in calling evidence allow the court to comfortably draw an inference that was in favor of the opposing party, where such inference was otherwise available on evidence). The High Court noted that the case of the ASIC did not rely on the inference but it depended on the direct evidence that was present in the form of the minutes of the board meeting held in February, 2001.
The judgment of the High Court supports the broadening focus of the regulators on the performance of nonexecutive directors and the senior executives who are below the board level (ASIC v Macdonald (No 11) (2009)). More importantly, as a result of this decision of the High Court, the application of objective standard of diligence imposed on the directors and other officers of the company has been reinforced.
ASIC v Hellicar  HCA 17
Australian Securities and Investments Commission v Macdonald (No 11) (2009) 256 ALR 199
Australian Securities and Investments Commission v Rich  NSWSC 1229
Blatch v Archer  1 Cowp 63
Jones v Dunkel (1959) 101 CLR 298
Morley v ASIC  NSWCA 331
S 180, Corporations Act, 2001 (Cth)
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