{"id":1351,"date":"2012-05-08T11:04:50","date_gmt":"2012-05-08T01:04:50","guid":{"rendered":"http:\/\/blogs.unsw.edu.au\/knowledgetoday\/?p=1351"},"modified":"2012-05-15T11:05:49","modified_gmt":"2012-05-15T01:05:49","slug":"hardie-decision","status":"publish","type":"post","link":"https:\/\/blogs.unsw.edu.au\/BTOpinion\/blog\/2012\/05\/hardie-decision\/","title":{"rendered":"High Court Decision to impact on corporate boards"},"content":{"rendered":"<p><strong>Anil Hargovan<\/strong><\/p>\n<p>The High Court decision in the James Hardie case has put corporate boards in Australia on notice that just \u2018rubber-stamping management decisions\u2019 can result in directors unwittingly breaching their duty of care and diligence.<\/p>\n<p>It will send shockwaves through corporate boards and company officers throughout Australia. The James Hardie directors face banning orders for breach of \u2018duty of care and diligence\u2019. They will also face financial penalties over their failure to pay attention to key aspects of corporate governance, including risk-management, due diligence and regulatory compliance.<\/p>\n<p>The landmark High Court decision sends a strong message to all boards across Australia not to underestimate the importance of the minutes of meetings. He says \u201cthe decision sheds light on the value and importance of the proper recording of minutes.<\/p>\n<p>The board\u2019s approval and recording of a resolution, even by informal means, can have what is called \u2018probative force\u2019 in contentious disputes, such as those arising in James Hardie where the entire board failed to recollect the existence of minutes which were crucial to allegations that the directors and officers breached their duty of care and diligence.<\/p>\n<p>The James Hardie judgement is a lesson for passive or compliant boards which approve resolutions, without exercising the degree of care and diligence required.\u00a0 The decision signals that there is no place for a ceremonial board which merely serves to rubber-stamp management decisions. It shows the need for boards to be more vigilant and diligent in the conduct of its monitoring role, particularly in light of substantive developments in the company &#8211; such as the restructuring of James Hardie \u2013 which should be taken seriously by the board and vetted for accuracy.<\/p>\n<p>The James Hardie litigation, and High Court decision, shows the need for the board to take care to avoid risks. Company officers, such as the secretary who in this case was performing a dual role as general counsel, have also been put on notice \u2013 the court will judge and evaluate their performance when determining liability for breach of duty of care and diligence, with reference to the actual tasks that they exercise, rather than by the title they wear or the capacity in which they act.<\/p>\n<p><em>Anil Hargovan is an Associate Professor at the Australian School of Business<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"<p>Anil Hargovan The High Court decision in the James Hardie case has put corporate boards in Australia on notice that just \u2018rubber-stamping management decisions\u2019 can result in directors unwittingly breaching their duty of care and diligence. It will send shockwaves through corporate boards and company officers throughout Australia. The James Hardie directors face banning orders [&hellip;]<\/p>\n","protected":false},"author":336,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-1351","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"_links":{"self":[{"href":"https:\/\/blogs.unsw.edu.au\/BTOpinion\/wp-json\/wp\/v2\/posts\/1351","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.unsw.edu.au\/BTOpinion\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.unsw.edu.au\/BTOpinion\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.unsw.edu.au\/BTOpinion\/wp-json\/wp\/v2\/users\/336"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.unsw.edu.au\/BTOpinion\/wp-json\/wp\/v2\/comments?post=1351"}],"version-history":[{"count":2,"href":"https:\/\/blogs.unsw.edu.au\/BTOpinion\/wp-json\/wp\/v2\/posts\/1351\/revisions"}],"predecessor-version":[{"id":1353,"href":"https:\/\/blogs.unsw.edu.au\/BTOpinion\/wp-json\/wp\/v2\/posts\/1351\/revisions\/1353"}],"wp:attachment":[{"href":"https:\/\/blogs.unsw.edu.au\/BTOpinion\/wp-json\/wp\/v2\/media?parent=1351"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.unsw.edu.au\/BTOpinion\/wp-json\/wp\/v2\/categories?post=1351"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.unsw.edu.au\/BTOpinion\/wp-json\/wp\/v2\/tags?post=1351"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}