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James Hardie decision reminds directors of their duty not to mislead potential investors

Company Law News | June 2012

On 3 May 2012 the full bench of the High Court handed down two unanimous rulings to find that 7 non-executive directors and the secretary of James Hardie Industries Ltd were in breach of their duties when they approved the release of an announcement to the Australian Stock Exchange that was misleading. This case involved the separation of two subsidiary companies from the James Hardie group that had large asbestos related liabilities. Upon the separation of the subsidiaries from the group, approved by the directors, a statement was made to the Australian Stock Exchange regarding the Medical Research and Compensation Fund established to fund compensation claims made against separated companies by injured people.  ASIC brought proceedings in 2007 against the directors and secretary on the basis that they had contravened their duties by approving a draft announcement that was misleading. ASIC relied on the minutes of a board meeting held in February, which tabled the approval o! f a draft announcement, signed and adopted as a correct record at the next board meeting in April 2001. This was contested by some of the respondents who claimed that the minutes were not an accurate record in other respects while others who gave evidence were not able to remember the proceedings at the board meeting in question. However, the High Court allowed the appeal made by ASIC on the basis that inaccuracies in the minutes did not discount their value as the formally adopted record of the board meeting.

This ruling highlights that boards of directors need to have a thorough understanding of proposals put before them, carefully review the ASX announcements before they are released to the market and ensure the minutes of board meetings are accurate and dare we say....not likely to mislead the public.

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