Fortescue Metals has been granted special leave to appeal against a High Court decision that held Mr Andrew Forrest had engaged in misleading and deceptive conduct in relation to a proposed port, rail line and mine located in the Pilbara and Port Hedland regions.

ASIC commenced proceedings in the Federal Court of Australia in March 2006 alleging FMG had engaged in misleading or deceptive conduct in contravention of s1041H of the Corporations Act 2001 (Cth) (CA) by falsely representing that the agreements were binding. Further, ASIC alleged these contraventions evidenced further conventions by the party. These included s674 of the CA and that Mr Forrest had personally contravened s180 of the CA.

ASIC appealed to the Full Federal Court. It was held by Chief Justice Keane and Justices Emmett and Finkelstein that the trial judge erred in finding the statements were expressions of opinion and that there was not an enforceable agreement between FMG and the three Chinese companies. Therefore, the announcements made by FMG contravened sections 1041H and 674 of the CA and Forrest contravened s647(2A) and 180 of the CA.

ASIC's acting chairman, Belinda Gibson, said the commission would defend the appeal.