Australian Securities and Investments Commission v Wilson (No 3) [2023] FCA 1009

Federal Court of Australia

Australian Securities and Investments Commission v Wilson (No 3) [2023] FCA 1009 File number: WAD 259 of 2018

Judgment of: JACKSON J

Date of judgment: 28 August 2023

Catchwords: CORPORATIONS - directors' duties - duty of care and diligence - s 180(1) of the Corporations Act 2001 (Cth) - alleged failure by managing director to tell board of termination of material agreements - consideration of hypothetical reasonable director - finding that managing director knew of possibility of termination - finding that hypothetical reasonable director would not have informed board of impending termination - factual foundation of case that managing director knew of actual termination not made out - no breaches of duty of care and diligence established CORPORATIONS - continuous disclosure obligations - s 180(1) and s 674 of the Corporations Act - exposure of company by managing director to risk of adverse consequences - consideration of breach of director's duty of care and diligence in said exposure - no allegation that company did breach s 674 of the Corporations Act - board lost opportunity to make disclosures about termination of material agreements - hypothetical reasonable director would have brought termination of material agreements to board's attention, if known - no such knowledge held by managing director - factual foundation of managing director receiving copy of termination agreement not made out - no breaches of duty of care and diligence established CORPORATIONS - misleading and deceptive conduct in relation to a financial product - s 180(1) and s 1041H of the Corporations Act - alleged failure by managing director to ensure company did not mislead market - announcement 'potentially' misled market as to ongoing supply to former customer - risk of exposure of company to breach of continuous disclosure obligations - hypothetical reasonable director would have prevented issue of misleading announcement - allegation that managing director knew of termination of ongoing supply agreement not made out - no breaches of duty of care and diligence established CORPORATIONS - alternative plea - s 180(1) of the Corporations Act - whether managing director should have enquired as to status of material agreements before approving market announcement - hypothetical reasonable director would not have made such enquiries EVIDENCE - standard of proof - where main witness called by each party unsatisfactory - use of objective factual surrounding material, inherent commercial probabilities and documentary evidence - drawing of inferences from available evidence EVIDENCE - expert evidence - objections to admissibility of expert report - whether witness has necessary specialised knowledge - whether opinion based on specialised knowledge - objections overruled