The decision for the James Hardie (JHI) appeal of a number of non-executive directors against ASIC in October 2011 is soon to be handed down.

A significant ground of appeal is whether the Court of Appeal erred in holding that the General Counsel of JHI was an “officer” of JHI within the meaning of section 9 of the Corporations Act. For the General Counsel to fall under this definition they must be a person who:

  1. participated in making decisions that affected the whole or a substantial part of the business;
  2. has the capacity to significantly affect the corporation’s financial standing; or
  3. the directors are accustomed to act in accordance with their wishes or instruction.  

If the High Court decides they do fall within that definition, the Australian Corporate Lawyers Association says, General Counsel roles will be significantly altered.