Australia: James Hardie decisions on duties of directors and officers - implications for general counsel and company secretaries

On 3 May 2012, the High Court delivered its judgments in the James Hardie directors' and officers' duties litigation, namely:

  • ASIC v Hellicar & Ors [2012] HCA 17 (first judgment), and
  • Shafron v ASIC [2012] HCA 18 (second judgment).

This article focuses on the aspects of the judgments which have implications for people employed in the roles of general counsel and/or company secretary.

ASIC v Hellicar & Ors

In the first judgment (see previous case alert), the High Court found that the former non-executive directors and the former general counsel/co-company secretary (Mr Peter Shafron) of James Hardie Industries Limited breached their statutory duties of care and diligence in relation to the approval of a false and misleading draft ASX announcement by the James Hardie board. The draft ASX announcement stated that the Medical Research and Compensation Foundation set up by James Hardie to meet future asbestos-related liabilities would have sufficient funds to meet all claims against James Hardie and its subsidiaries:

"The Foundation will have sufficient funds to meet all legitimate compensation claims from people injured by asbestos products..."

In the proceedings ASIC alleged, and the High Court found:

  • the James Hardie board approved the draft ASX announcement (a contentious fact), and
  • the draft ASX announcement was too emphatically worded as to the sufficiency of funding in the foundation and was therefore false and misleading.

The relevant findings against Mr Shafron in the first judgment were that as general counsel and co-company secretary, Mr Shafron was an "officer" of James Hardie, as defined in Section 9 of the Corporations Act (this finding was dealt with in more detail in the second judgment which is considered below). Accordingly, Mr Shafron owed a statutory duty of care and diligence to James Hardie pursuant to Section 180 (1) of the Act, and by failing to advise the James Hardie board that the draft ASX announcement was false and misleading, Mr Shafron contravened that section of the Act.

Shafron v ASIC

The second judgment dealt with Mr Shafron's appeal to the High Court in relation to the New South Wales Court of Appeal's findings that he contravened Section 180 (1) of the Act in certain respects which related to the creation of the foundation, but did not directly relate to the James Hardie board's approval of the draft ASX announcement. The contraventions of Section 180 (1) alleged by ASIC against Mr Shafron that were considered in the second judgment related to the following conduct:

  • Mr Shafron's failure to advise the James Hardie board that a cash flow model used to predict the sufficiency of funding in the foundation did not factor in "superimposed inflation", being the potential for claims to increase at a rate above the general inflation rate, where a prudent actuarial assessment would.
  • Mr Shafron's failure to advise the James Hardie board that there were continuous disclosure obligations pursuant to the Act and the ASX Listing Rules to be complied with in relation to the creation of the foundation.

The High Court found Mr Shafron contravened Section 180(1) in both of the above-mentioned respects.

In reaching its conclusions in the second judgment, the High Court made the following observations and findings.

The Court rejected Mr Shafron's submission that because he was an "officer" by definition under the Act in relation to his role as co-company secretary, his responsibilities as general counsel could be separated out in assessing whether he contravened Section 180 (1). It was held that as a practical matter, a division of Mr Shafron's tasks into those undertaken as co-company secretary, and those undertaken as general counsel, could not be made. Rather, the High Court observed the overlapping nature of the tasks Mr Shafron performed in each capacity, and the lack of evidence to suggest that he performed certain tasks as co-company secretary and other tasks as general counsel, prevented such a finding.

In relation to whether Mr Shafron ought to be deemed an "officer" under the more general test relating to his participation in the decision making processes of James Hardie, the Court stressed that participation includes "the role that a person has in the ultimate act of making a decision, even if that final act is undertaken by some other person or persons". The High Court observed that Mr. Shafron was a senior executive employee of James Hardie who was involved in the formulation of proposals put to the board over a long period of time. The court also had regard to the material influence Mr Shafron had on decision making processes within James Hardie generally and not solely in relation to the decisions that were the subject of the litigation.

The High Court also stated that as a matter of statutory interpretation, Section 180 (1) was given content with reference to "whatever responsibilities the officer concerned had within the corporation, regardless of how or why those responsibilities came to be imposed on that officer".


It is common for the roles of general counsel and company secretary to be performed by one person. Given the findings against Mr Shafron in James Hardie litigation, people employed as general counsel and co-company secretary ought to be cognisant of the likelihood that:

  • they will be considered an officer of their company,
  • their roles as general counsel and company secretary will not be differentiated for the purpose of assessing any liability under Section 180 (1) unless there is clear evidence to the contrary, and
  • their duty of care and diligence is likely to extend to providing or obtaining appropriate advice on legal issues.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Kemp Strang has received acknowledgements for the quality of our work in the most recent editions of Chambers & Partners, Best Lawyers and IFLR1000.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.