In this case, the Supreme Court of Victoria considered the legal distinction between executive and non-executive directors, for the purpose of determining whether a director was entitled to the benefit of a special excess limit available under a policy of investment management insurance.

The Court held that the essential characteristic of an executive director was his or her discharge of executive functions in the management and administration of the company, usually as an employee. Non-executive directors, on the other hand, are usually independent of corporate management. While a managing director is, as a matter of law (and absent special circumstances), an executive director, it is a question of fact whether another director is an executive director. It may depend on whether there is some feature of the company’s constitution or its conduct ingeneral meeting or of the board of directors, that evidences the delegation of executive function to that director to operate as an executive (for example, board approval of an employment contract of a director as an executive).

An appeal from this decision was dismissed (see AIG Australia Ltd v Jaques [2014] VSCA 332).

You can access the reasons for judgment here.