On 17 December 2010, the NSW Court of Appeal overturned a 2009 judgment that banned seven former non-executive directors of James Hardie from sitting on boards for five years and set aside separate fines of $30,000.

On 13 May the Australian Securities and Investment Commission (ASIC) won leave to appeal against that decision to the High Court. On that same date, the former general counsel and company secretary of James Hardie, Peter Shafron, also won leave to appeal to the High Court for alleged breaches of the Corporations Act.

The High Court will be hearing the cases against the eight former office holders of James Hardie together.

The directions hearing is set down for 24 October, with the hearing before a full-bench of the High Court scheduled to run from 25 October to 27 October.

Despite the resounding NSW Court of Appeal judgment that criticised the way ASIC's legal advisers handled the case, Clayton Utz has been retained by the regulator to act on the appeal to the High Court.

Brigitte Markovic, the head of the firm's litigation and dispute resolution practice, is leading the firm's team, with the solicitor-general, Stephen Gageler, instructed.

In the NSW Court of Appeal judgment, former NSW chief justice James Spigelman commented that "ASIC (and derivatively its lawyers) has a duty to conduct litigation such as this consistently with ASIC's duty of fairness. 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 presenting witnesses to court."

Spigelman specifically referred to the failure of ASIC to call David Robb, a former partner of Allens Arthur Robinson who had provided legal advice to James Hardie, as undermining ASIC's case.

Atanaskovic Hartnell is acting for the lead respondents. The firm is providing legal counsel to four of the non-executive directors, including Meredith Hellicar, the chairman of James Hardie between 2004 to 2007. It is also acting for Michael Brown, Mike Gilfillan and Martin Koffel.

Managing partner John Atanaskovic and partner Larissa Pickford are leading the firm's team, with barristers Justin Gleeson SC, Rob Hollo SC and Rohan Hardcastle instructed.

"Even if the High Court supports ASIC on the duty of fairness issue - and finds there isn't one or that ASIC didn't breach it - the High Court still has to come to a view on whether ASIC has proved its case that the non-executive directors approved the relevant Australian Securitees Exchange (ASX) release," said John Atanaskovic when speaking to Lawyers Weekly.

ASIC is not able to call Robb or any further witnesses in the High Court appeal.

ASIC claims that despite James Hardie making announcements to the ASX that its compensation asbestos fund was fully funded, it later emerged that the fund was underfunded by over $1 billion.

ASIC's contention is that relevant announcements made to the ASX by James Hardie were approved by the company's board, something which the former non-executive directors of James Hardie dispute.

The other three non-executive directors of ASIC are being represented by Arnold Bloch Leibler, Kemp Strang and Blake Dawson.

ABL partner Jonathan Milner is acting for Dan O'Brien, with instructed barrister Peter Wood.

Kemp Strang partner Alex Linden is acting for Peter Willcox, with barristers Thomas Jucovic QC and Richard Scruby assisting.

Greg Terry has retained Blake Dawson partner Angela Pearsall and associate Stephanie Patterson. Barristers Andrew Bell SC and Scott Nixon have also been retained.

The duties of a general counsel

The ruling on Peter Shafron's case has the potential to significantly alter what are considered to be the responsibilities of a general counsel. 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.

"The High Court has an opportunity to establish a clearer test to identify who is an officer and how far an officer's duty of care extends," Middletons partner Murray Deakin told Lawyers Weekly. "The resolution of these critical issues would be of great benefit to corporate Australia".

Deakin is acting for Shafron, with assistance from senior associate Sylivia NG and high-profile barrister Bret Walker SC.