THREE years after commissioner Terence Cole QC released his multi-volume report into the Australian Wheat Board’s payment of kickbacks to Iraq, the corporate regulator has been left holding the can. Yesterday, despite extensive setbacks, ASIC looked set to fight on.
The corporate regulator announced yesterday afternoon that is appealing against a Supreme Court of Victoria decision to halt half of its proceedings against the former Australian Wheat Board managing director, Andrew Lindberg.
ASIC yesterday applied for leave to appeal in the Court of Appeal of the Supreme Court of Victoria in relation to its second civil penalty case against Lindberg.
This follows Justice Robson’s decision to permanently stay those proceedings on Wednesday 9 December in the Supreme Court of Victoria.
The second case concerned allegations that Lindberg misled the AWB board about the Tigris transaction, its internal investigation, ‘Project Rose’, and the UN’s Volcker inquiry into the Iraqi oil-for-food scandal.
In halting the case, Justice Robson said this element of ASIC’s case against Lindberg would be vexatious and oppressive. He said that to pursue it would bring the administration of justice into disrepute.
It is expected that in its appeal, ASIC will raise what it considers to be the judge’s erroneous interpretation of its statement of claim.
In his written decision, Justice Robson suggested Lindberg suffered “strain and stress and humiliation of sitting through the opening”, which resulted in “considerable publicity … that was especially damaging to Lindberg’s credit and reputation”.
ASIC’s first case against Lindberg, meanwhile, is ongoing. It concerns allegations that Lindberg contravened sections of the Corporations Act arising from AWB entering into contracts for the supply of wheat to Iraq.
ASIC alleges Lindberg contravened section 180, which requires company officers to act with care and diligence, and section 181, which requires company officers to discharge their duties in good faith and for a proper purpose.
ASIC commenced civil penalty proceedings in the Supreme Court of Victoria against six former directors and officers of AWB in December 2007.
The matter will return to court today.