Full Court Minute Books

Case S173/2011

Shafron v. Australian Securities and Investments Commission

Case No.


Related matters:

S174-S181/2011 – ASIC v. Shafron & Ors

Case Information

Lower Court Judgment

17/12/2010 Supreme Court of New South Wales (Court of Appeal)

[2010] NSWCA 331


Corporations — Management and administration — Evidence — Misleading announcement sent to Australian Stock Exchange ("ASX") — At trial, Australian Securities and Investments Commission ("ASIC") failed to call solicitor ("Mr Robb") advising James Hardie Industries Ltd ("JHIL") who attended meeting of Board of Directors — Trial judge made adverse findings and declarations of contravention against first to eighth respondents — Whether ASIC obliged to call particular witnesses pursuant to obligation of fairness — Whether ASIC failed to discharge burden of proving that JHIL Board passed Draft ASX Announcement resolution — Whether ASIC obliged to call Mr Robb to give evidence of firm's receipt of Draft ASX Announcement — Whether ASIC's failure to comply with obligations, if extant, had negative evidentiary impact on ASIC's case — Whether certain oral evidence of respondents Brown and Koffel ought to have been accepted as correlating with terms of Draft ASX Announcement — Whether ASIC failed to prove that JHIL Board passed resolution approving tabled ASX Announcement — Whether of evidentiary significance that company associated with respondent O'Brien produced to ASIC identical version of Draft ASX Announcement — Whether evidence of JHIL company secretary that practice of retaining versions of announcements approved for market release did not relate to period of release of misleading announcement — Whether reliability and weight to be attributed to Board minutes open to question — Whether declarations of contravention made in respect of first to eighth respondents should be set aside — Whether, in respect of Shafron cross-appeal: Shafron was an officer of JHIL who participated in decisions affecting the business of JHIL; Shafron's responsibilities as company secretary and general counsel fell within scope of duty of care and diligence imposed on him as an "officer" by s 180(1) of Corporations Law and Corporations Act 2001 (Cth) ("Acts"); Shafron's conduct was in his capacity as JHIL company secretary; Shafron breached s 180(1) of the Acts.

Short Particulars


13/05/2011 Hearing (SLA, Sydney)

25/05/2011 Notice of appeal

17/06/2011 Written submissions (Appellant)

17/06/2011 Chronology (Appellant)

20/07/2011 Written submissions (Respondent)

03/08/2011 Amended Chronology (Appellant)

12/08/2011 Reply

24/10/2011 Hearing (Single Justice, Canberra)

25/10/2011 Hearing (Full Court, Canberra)

26/10/2011 Hearing (Full Court, Canberra)

27/10/2011 Hearing (Full Court, Canberra)

03/05/2012 Judgment  (Judgment summary)