find the latest legal job
Corporate Counsel and Company Secretary
Category: Generalists - In House | Location: Newcastle, Maitland & Hunter NSW
· Highly-respected, innovative and entrepreneurial Not-for-Profit · Competency based Board
View details
Chief Counsel and Company Secretary
Category: Generalists - In House | Location: Newcastle, Maitland & Hunter NSW
· Dynamic, high growth organisation · ASX listed market leader
View details
In-house Projects Lawyer | Renewables / Solar | 2-5 Years PQE
Category: Generalists - In House | Location: All Australia
· Help design the future · NASDAQ Listed
View details
Insurance Lawyer (3-5 PAE)
Category: Insurance and Superannuation Law | Location: Brisbane CBD & Inner Suburbs Brisbane QLD
· Dynamic organisation ·
View details
Legal Counsel
Category: Corporate and Commercial Law | Location: North Sydney NSW 2060
· 18 month fixed term contract · 3-5 years PQE with TMT exposure
View details
Four firms help Hardies directors to win appeal

Four firms help Hardies directors to win appeal

Atanaskovic Hartnell were the big winners in a NSW Court of Appeal decision that has allowed seven former non-executive directors of James Hardie to once again sit on company boards.In a…

Atanaskovic Hartnell were the big winners in a NSW Court of Appeal decision that has allowed seven former non-executive directors of James Hardie to once again sit on company boards.

In a unanimous decision handed down today (17 December), a previous decision that banned the former directors, including Meredith Hellicar, the chairman of James Hardie between 2004 to 2007, from sitting on boards for five years and separate fines of $30,000 to each director was overturned. Atanaskovic Hartnell acted for four of the seven victorious directors. In addition to Hellicar, managing partner John Atanskovic also represented Michael Brown, Mike Gillfillan and Martin Koffel.

The other directors who were successful in their appeal were Dan O'Brien, with Arnold Bloch Leibler acting, Peter Willcox, who were represented by Kemp Strang and Greg Terry, for whom Blake Dawson acted.

ASIC was represented by Clayton Utz, with Brigitte Markovic, the head of the firm's blue-ribbon litigation team acting.

In the judgment, Chief Justice Spigelman specifically referred to the failure of the regulator to call David Robb, a former partner of Allens Arthur Robinson who provided legal advice to James Hardie, as "undermining the cogency of ASIC's case that the resolution was passed".

John Atanaskovic, who also acted for the four directors in the trial judgment that went against his client, was scathing in his assessment of the role of the regulator and their lawyers throughout this process.

"ASIC (and derivatively its lawyers) has a duty to conduct litigation such as this consistently with ASIC's duty of fairness," he said. "This case was notable for ASIC's egregious failure to observe this duty, and the court's decision today was in significant part based on ASIC's failure to act fairly in particular in presenting necessary witnesses to court."

The action by ASIC against the non-executive directors relates to the establishment of a fund to pay compensation to asbestos victims.

ASIC claimed that despite James Hardie making announcements to the Australian Securites Exchange that the fund would be fully funded, it later emerged the fund was underfunded by over $1 billion.

Despite overturning the ban on the former James Hardie directors from sitting on boards, Chief Justice Spigelman rejected the company's appeal from an earlier ruling that it made misleading statements to the Australian Securities Exchange about its ability to meet asbestos claims.

James Hardie was ordered to pay 90 per cent of ASIC's costs in this matter.

Under an agreement with the NSW government, James Hardie committed to pays 35 per cent of its annual cash flow to compensate sufferers of asbestos-related diseases.

Asbestos victims support groups have criticised the decision of the Court of Appeal to overturn the penalties against the non-executive directors.

Like this story? Read more:

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

Four firms help Hardies directors to win appeal
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
LCA president Fiona McLeod SC
Aug 17 2017
Where social fault lines meet the justice gap in Aus
After just returning from a tour of the Northern Territory, LCA president Fiona McLeod SC speaks wit...
Marriage equality flag
Aug 17 2017
ALHR backs High Court challenge to marriage equality postal vote
Australian Lawyers for Human Rights (ALHR) has voiced its support for a constitutional challenge to ...
Give advice
Aug 17 2017
A-G issues advice on judiciary’s public presence
Commonwealth Attorney-General George Brandis QC has offered his advice on the public presence of jud...
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...