The High Court has granted leave to the former general counsel of James Hardie to appeal against alleged breaches of the Corporations Act.
Peter Shafron, the former general counsel and company secretary of James Hardie, was granted leave to appeal on Friday (13 May) against previous adverse findings against him by the NSW Court of Appeal.
In a note to clients, Middletons said the granting of leave to Shafron means the High Court will clarify whether a person acting as a general counsel should be considered an "officer" under the terms of the Corporations Act.
Bret Walker SC acted for Shafron.
On Friday the High Court also granted leave to appeal to the Australian Securities and Investments Commission (ASIC) against a decision by the NSW Court of Appeal in December last year that overturned fines of $30,000 and five-year corporate board suspensions against seven former non-executive directors of James Hardie.
ASIC claims that despite James Hardie making announcements to the Australian Securites Exchange that an asbestos compensation fund would be fully funded, it later emerged the fund was underfunded by more than $1 billion.
In overturning a 2009 decision against the seven former directors, including the company's former chairman Meredith Hellicar, the NSW Court of Appeal found that ASIC had not met its own standards to provide a duty of fairness.
Chief Justice Spigelman commented that the failure of the regulator to call David Robb, a former partner at Allens Arthur Robinson who provided legal advice to James Hardie, "undermined the cogency of ASIC's case".
All the firms involved in the NSW Court of Appeal judgment have been retained.
Atanaskovic Hartnell acted for four of the former directors, including Hellicar, with Tom Bathurst QC senior counsel. Kemp Strang, Arnold Bloch Leibler and Blake Dawson acted separately for the other three directors.
John Atanaskovic told Lawyers Weekly that the granting of leave to appeal was expected. "We will run it as a factual case," he said.
"The decision on the grounds of procedural fairness is a bit of an irrelevance really, and we are confident that if it is a factual case, the decision will go the same way."
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