ASIC Chairman Greg Medcraft has welcomed the High Court’s decision in ASIC’s appeal against the decision of the NSW Court of Appeal regarding James Hardie’s former non-executive directors and former company secretary and general counsel. In this matter, the trial judge found that approval by the Board of the draft ASX announcement was a breach of director’s duties. While the NSW Court of Appeal found that the announcement had not been approved, they agreed that it would have been a breach had the directors approved the announcement. This was not challenged in the High Court. The Court of Appeal also found ASIC had an obligation of fairness in civil penalty proceedings which included an obligation to call all material witnesses. In its appeal, which was heard in October 2011, ASIC argued that while it has an obligation to act as a model litigant, that obligation does not encompass a duty to call all material witnesses. The High Court today decided that ASIC’s decision not to call Mr Robb caused no unfairness and that there was no basis for drawing any inference that Mr Robb would have given evidence adverse to ASIC’s case. This decision upholds the finding of the trial judge that the directors of James Hardie did approve the draft ASX announcement made by the company and, in doing so, breached their duty to the company.