High Court of Australia

Australian Securities and Investments Commission v Hellicar [2012] HCA 17

Australian Securities and Investments Commission v Brown

Australian Securities and Investments Commission v Gillfillan

Australian Securities and Investments Commission v Koffel

Australian Securities and Investments Commission v Terry

Australian Securities and Investments Commission v O'Brien

Australian Securities and Investments Commission v Willcox

Australian Securities and Investments Commission v Shafron

247 CLR 345; 86 ALJR 522; 286 ALR 501

3 May 2012

Case Number: S176/2011 S179/2011 S175/2011 180/2011 S181/2011 S174/2011

Before

French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ

Catchwords

Corporations – Duties and liabilities of directors and officers – Contraventions of civil penalty provisions of Corporations Act 2001 (Cth) ("the Act") – Corporation released misleading announcement to Australian Stock Exchange ("ASX") – Australian Securities and Investments Commission ("ASIC") brought proceedings against respondents (and others) for contraventions of the Act – Section 180(1) of the Act required directors and officers to act with degree of care and diligence that reasonable person in that position would exercise – ASIC alleged directors contravened s_180(1) by approving draft announcement not materially different from misleading announcement released to ASX – ASIC alleged company secretary and general counsel of corporation contravened s 180(1) by not advising board that draft announcement was misleading – Whether directors approved draft announcement.

Evidence – ASIC tendered minutes of board meeting recording tabling and approval of draft ASX announcement – Minutes subsequently approved – ASIC did not call corporation's solicitor, who had supervised preparation of draft minutes and attended board meeting – Whether ASIC owed respondents a "duty of fairness" in its conduct of litigation – Whether ASIC breached putative duty by not calling solicitor – Whether proper consequence of any such breach was to discount cogency of ASIC's case – Whether board minutes sufficient evidence to prove directors' approval of draft announcement.

Words and phrases – "cogency of proof", "duty of fairness", "obligation of fairness", "onus of proof", "satisfaction on the balance of probabilities".

Corporations Act 2001 (Cth) – ss 180(1), 251A, 1317L.

Evidence Act 1995 (NSW) – s 140.

Judiciary Act 1903 (Cth) – ss 64, 79, 80.

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