Forrest v Australian Securities and Investments Commission [2012] HCA 39

HIGH COURT OF AUSTRALIA

FRENCH CJ, GUMMOW, HAYNE, HEYDON AND KIEFEL JJ

Matter No P44/2011

JOHN ANDREW HENRY FORREST APPELLANT

AND

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION & ANOR RESPONDENTS

Matter No P45/2011

FORTESCUE METALS GROUP LTD APPELLANT

AND

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION & ANOR RESPONDENTS

Forrest v Australian Securities and Investments Commission Fortescue Metals Group Ltd v Australian Securities and Investments Commission [2012] HCA 39 2 October 2012 P44/2011 & P45/2011

ORDER

In each matter:

1. Appeal allowed with costs.

2. Set aside the orders of the Full Court of the Federal Court of Australia made on 18 February 2011 as varied on 20 May 2011 and, in their place, order that the appeal by the Australian Securities and Investments Commission to that Court be dismissed with costs.

3. Special leave to cross-appeal granted, treated as instituted and heard instanter, and dismissed with costs.

On appeal from the Federal Court of Australia

Representation

A J Myers QC with M Thangaraj SC for the appellant in P44/2011 and the second respondent in P45/2011 (instructed by Gadens Lawyers)

D F Jackson QC with B Dharmananda SC for the appellant in P45/2011 and the second respondent in P44/2011 (instructed by Corrs Chambers Westgarth)

N J Young QC with M K Moshinsky SC, J A Thomson and A D Pound for the first respondent in both matters (instructed by King & Wood Mallesons)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Forrest v Australian Securities and Investments Commission Fortescue Metals Group Ltd v Australian Securities and Investments Commission

Corporations law – Misleading or deceptive conduct – Fortescue made agreements with Chinese state-owned entities to build, transfer and finance mining infrastructure – Forrest and Fortescue made public statements that binding agreements entered into – Whether statements were of opinion or fact – Whether ordinary or reasonable member of audience would understand statements as making representation about enforceability of agreements in Australian law – Whether statements misleading or deceptive or likely to mislead or deceive.