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James Hardie notes ASIC's move to appeal

James Hardie notes ASIC's move to appeal

The corporate regulator has filed applications to the High Court for special leave to appeal the decision of the NSW Court of Appeal in the James Hardie matter. James Hardie responds.

THE corporate regulator has filed applications to the High Court for special leave to appeal the decision of the NSW Court of Appeal in the James Hardie matter.

James Hardie has not yet commented on the Australian Securities and Investments Commission’s (ASIC’s) decision to appeal the Court’s overturning of bans on seven of the company’s former directors.

In a statement released today, James Hardie said it noted ASIC’s decision to seek leave to appeal, as well as separate application for leave to appeal by former executives Peter Shafron and Phillip Morley.

Morley, James Hardie’s former chief financial officer, had his appeal to the Court of Appeal dismissed, while Shafron, the former general counsel, was dismissed in part.

James Hardie said the company “does not propose to comment further upon the decisions or applications for special leave to appeal”.

The judgment of the New South Wales Court of Appeal raises a number of issues of importance concerning ASIC’s obligations in the conduct of civil penalty proceedings.

If granted special leave, ASIC will contend that the Court of Appeal erred in describing the scope and content of ASIC’s obligations when bringing civil penalty proceedings and in the way the Court's view of ASIC’s obligations affected the outcome of the appeal.

ASIC would also seek to challenge some of the conclusions reached by the Court of Appeal in assessing whether the board of James Hardie approved the ASX announcement made by the company.

ASIC chairman, Tony D’Aloisio, said: “In applying for special leave to appeal, ASIC is seeking clarification of the content and scope of ASIC’s obligations in the conduct of civil penalty proceedings.

“Seeking this clarification is in the public interest, as it will be of considerable significance for how regulatory agencies such as ASIC conduct civil enforcement proceedings. ASIC is also seeking to uphold the finding of the trial judge that the directors of James Hardie approved the ASX announcement made by the company and, in doing so, breached their duty to the company.’'


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