Las "Catchwords" de la sentencia resumen los temas comprendidos en el conflicto dilucidado judicialmente:
CORPORATIONS – directors’ duties – domestic broadcast rights for the Australian Open – information flow and reporting to the board of Tennis Australia – negotiations with the Seven Network – renewal of rights agreement – existence of competitive tension – potential rival bids – relevance of exclusive negotiating period – loss of opportunity to go to tender – directors’ failure to present information to board – role of directors in negotiations – secret dealings between a director of one party with a representative of the counterparty – failure to exercise due care and diligence as a director – improperly misusing position as a director – improperly misusing information gained as a director – alleged contraventions of ss 180(1), 182(1) and 183(1) of Corporations Act 2001 (Cth) – declarations of contraventions under s 1317E – civil penalties under s 1317G – disqualification orders under ss 206C and 206E
LINK a la sentencia:
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA//2020/1098.html
Es una sentencia muy extensa, sumamente interesante.
Me interesa destacar aspectos referidos a la calificación de la conducta y responsabilidad en el derecho australiano, derecho anglosajón, relacionada con la actuación de integrantes de lo que en nuestro derecho societario llamamos "directorio".
Dejaré transcriptos a continuación dichos conceptos.
“The position of chairman
- The Corporations Act does not make any express reference to the roles or functions of a chairman of the board. But as Professor Andrew Clarke has distilled more generally (Clarke A, “The lacuna in corporate law: The unwritten role of the chair” (2018) 33 Australian Journal of Corporate Law 125 at 132) from legislative rules able to be displaced or modified by a company’s constitution (s 135 and also Chapter 2G):
The Corporations Act 2001 (Cth) via the replaceable rules potentially provides a series of provisions which the company can adopt to suit its purposes and support the chair’s role regarding oversight of the meeting process. There are several overlapping and interlocking rules available. These include the option that the directors may appoint a director to chair directors’ meetings [s 248E]. If so, the chair has a casting vote at directors’ meetings [s 248G(2)]. Alternatively, an individual may be elected by the directors to chair meetings of the company’s members [s 249U(1)]. Furthermore, the directors must elect a person to chair the meeting if they have not previously done so prior to the meeting, or if the previously elected person is not available for the meeting [s 249U(2)]. If the directors do not elect a chair for the shareholders’ meeting or the chair is unavailable, the shareholders may elect the chair [s 249U(3)]. The chair is provided with a casting vote as well as any other vote they have in their capacity as a shareholder [s 250E]. Minutes must be signed by the chair of the meeting or the chair of the next meeting [s 251A(2)]. These features of the replaceable rules promote the role of the chair from the merely ceremonial.
- Further, there was regulatory guidance around the relevant time in the form of the ASX’s Corporate Governance Principles and Recommendations. Recommendation 2.5 (3rd edition, 2014) provided that the chairman of a listed entity should be an independent director, and should not be the same person as the CEO. The commentary to Recommendation 2.5 (3rd edition, 2014) described the responsibilities of the chairman:
The chair of the board is responsible for leading the board, facilitating the effective contribution of all directors and promoting constructive and respectful relations between directors and between the board and management. The chair is also responsible for setting the board’s agenda and ensuring that adequate time is available for discussion of all agenda items, in particular strategic issues.
- The prior version (2nd edition, 2007 with 2010 amendments) had a similarly worded but differently numbered Recommendation 2.2. The commentary to it provided:
The chair is responsible for leadership of the board and for the efficient organisation and conduct of the board’s functioning.
The chair should facilitate the effective contribution of all directors and promote constructive and respectful relations between directors and between board and management.
Where the chair is not an independent director, it may be beneficial to consider the appointment of a lead independent director.
The role of chair is demanding, requiring a significant time commitment. The chair’s other positions should not be such that they are likely to hinder effective performance in the role.
The chair should facilitate the effective contribution of all directors and promote constructive and respectful relations between directors and between board and management.
Where the chair is not an independent director, it may be beneficial to consider the appointment of a lead independent director.
The role of chair is demanding, requiring a significant time commitment. The chair’s other positions should not be such that they are likely to hinder effective performance in the role.
The chairman is responsible to a greater extent than any other director for the performance of the board as a whole and each member of it. The chairman has the primary responsibility of selecting matters and documents to be brought to the board’s attention, for formulating the policy of the board and promoting the position of the company. In discharging his or her responsibilities the chairman will cooperate with the managing director if the two positions are separate or otherwise with senior management.
- This judgment was appealed, but the Court of Appeal did not question these observations (see Daniels v Anderson (1995) 37 NSWLR 438).
...a person who is a chairman of the board of directors has additional rights and duties and additional opportunities. Ordinarily it is the function of a chairman to settle the agenda of the meetings of the board: at least he exercises a significant influence upon it. He is in a position, in the sense here relevant, to ensure that proposals are brought forward for consideration by the directors at their meetings. And this, in a particular case, may affect the content of fiduciary duties which he owes to his company.
- In Australian Securities and Investments Commission v Rich [2003] NSWSC 85; (2003) 174 FLR 128 (Rich I) at [58] to [59] Austin J on a strike out application referred to both AWA Ltd v Daniels and Woolworths Ltd v Kelly when he said that some cases indicate that the chair of a listed company may have responsibilities that go beyond procedural duties.
- Now more generally, the content of Mr Healy’s duty under s 180(1) is to be determined according to the responsibilities that Mr Healy held within TA as chairman and president. And in Shafron v Australian Securities and Investments Commission [2012] HCA 18; (2012) 247 CLR 465 it was explained that such responsibilities could be statutory and non-statutory. The plurality said (at [18]):
[T]hose responsibilities include any responsibility that is imposed on the officer by the applicable corporations legislation. But the responsibilities referred to in s 180(1) are not confined to statutory responsibilities; they include whatever responsibilities the officer concerned had within the corporation, regardless of how or why those responsibilities came to be imposed on that officer.
- Further, in Australian Securities and Investments Commission v Rich [2009] NSWSC 1229; (2009) 236 FLR 1 (Rich II) at [7202], Austin J observed, with reference to Rich I and with which I would agree, that:
[t]he word “responsibilities” directs attention to the factual arrangements operating within the company and affecting the director or officer in question, as opposed to the legal duty of care arising in particular circumstances. The “responsibilities” of a director or officer include arrangements flowing from the experience and skills that he or she brings to bear to the office, and also any arrangements within the board or between the person and executive management affecting the work that the person is expected to carry out. I rejected the notion that the word “responsibilities” refers only to specific tasks delegated to the relevant director or officer by the corporate constitution or a board or members’ resolution or otherwise, holding that it was a wider concept referring to the acquisition of responsibilities not only through specific delegation, but also through the way in which work is in fact distributed within the corporation and the expectations placed by those arrangements on the shoulders of the individual director or officer.
- Let me delve a little deeper into the position of the chairman of the board.
- Clearly, he has no power or authority to manage the corporation. His primary function is to preside at board meetings and accordingly to exercise procedural control. But save for that, and his power to exercise a casting vote (if applicable), he has no greater authority than an ordinary director. He is not some sort of directorial overlord. But he does have the power and authority to manage board meetings and to that extent he may have greater responsibility for the performance of the board as a whole.
- But the chairman does have the power, authority and responsibility for setting the agenda items for board meetings, although these may be added to by the agreement of other directors. He can also discharge that responsibility in consultation with the CEO.
- He also has the power, authority and responsibility to ensure that the board has before it sufficient information, whether presented in written or oral form, such as to be able to meaningfully consider, discuss and decide on the agenda items before the board at the relevant meeting taking into account the context of the decision required or consideration necessary by the board at that meeting. Of course, he may discharge such a responsibility in consultation with the CEO. I have elaborated on these themes earlier in my reasons.
- The chairman also has the power, authority and responsibility to manage the board to ensure that sufficient time is allowed for the discussion of complex or contentious matters; for this purpose it may be necessary to arrange meetings outside board meetings so that board members are thoroughly prepared.
- Further, the chairman is there to ensure that the board members work effectively together and to ensure that their skill sets and personalities complement each other. Moreover, he should endeavour to facilitate the effective contribution of each director.
- Further, the chairman is there to ensure workable and harmonious relations between the executive and non-executive directors, and more generally to ensure workable and harmonious relations between the board on the one hand and the executive management on the other hand, particularly the CEO. It should go without saying that the relationship between the chairman and the CEO, particularly where the CEO is not a director as in the present case with Mr Wood, needs to be productive and harmonious; the chairman should facilitate this.
- Further, as Professor Clarke points out, the chairman has an important role in dealing with disrupters on the board. Do they display very negative behaviour? Are they “net energy drainers” (Ram Charan, Dennis Carey and Michael Useem, Boards That Lead: When to Take Charge, When to Partner, and When to Stay out of the Way (Harvard Business Review Press, 2013) 64-5)? Do they pontificate on issues that are pretentious or irrelevant? Do they require remedial assistance or counselling? Should they be encouraged to depart? These are all questions that a chairman may have to ask himself. It should not be forgotten that disproportionate disharmony within a board can damage the corporation by unwanted media attention and damage to reputation or internal disillusionment within the organisation. But productive dissent and competitive tension between conflicting ideas and positions should be welcomed rather than hindered by a chairman who thinks that he otherwise knows best.
- Further, the chairman may have greater responsibility for defining and ensuring that the board sets and implements the corporate culture of the organisation in the neutral sense referred to in s 12.3(6) of the Criminal Code (Cth) meaning “an attitude, policy, rule, course of conduct or practice existing within the body corporate generally”. So, in one sense, such culture may be described as the organisation’s set of shared values and assumptions. For present purposes it is not necessary to elaborate on such themes, let alone seek to infuse them with any discussion of contemporary community expectations or standards if it was ever possible to distil their essence at any particular time.
- Further, the chairman may have greater responsibility for defining and ensuring that the board sets and implements the appropriate corporate governance structure within the organisation. I use corporate governance here in the sense described in the ASX’s publications that I have referred to above adopting what was said by Justice Neville Owen in the HIH Royal Commission report, being the framework of rules, relationships, systems and mechanisms under which authority is exercised and controlled within the corporation and under which it is accountable.
- Further, there are other responsibilities of the chairman including assisting to identify new directors, dealing with the induction of new directors and ensuring continuing education and development of each director. More generally, he is responsible for monitoring the performance of the board, board members and board committees.
- Further, the chairman is there to ensure that there is appropriate communication with and the taking into consideration of the interests and concerns of members, in this case the member associations. In the present context, the evidence concerning the events of late 2015 well demonstrate that Mr Healy properly took into account the concerns and interests of member associations when they wished to have Mr Mitchell continue as a director. In doing so, he was properly discharging his duty rather than engaging in any conduct which was its antithesis as ASIC seemed to suggest.
- Finally, the chairman may have a public relations role in representing the board and the organisation to outside parties.
- Let me now shift the focus slightly and say something about the chairman’s role in the context of corporate practices. In this context, one has to look at what I would describe as two types of corporate practices relevant to an organisation.
- The first type is descriptive corporate practices. In other words, what were the types of actual corporate practices within the organisation? What was actually done in terms of the division of corporate structure and responsibilities? In that context, one might then identify what the organisation expected of the chairman, and then compare it with what the chairman actually did.
- The second type is normative corporate practices. In other words, what should have been the corporate practices within the organisation? These may differ from the actual practices. Further, such a normative question may only be able to be answered by looking at actual corporate practices both within and outside the organisation. Now these may identify what could be described as the “usual practices”. But even identifying such usual practices does not necessarily identify what should have been the practices. Normative corporate practices and “usual” corporate practices are not one and the same thing. I should say that in the present case, ASIC has not sought to identify by reference to expert evidence any such usual practices or indeed normative corporate practices, let alone how Mr Healy’s responsibilities should have been seen in that light. So, it is difficult to compare Mr Healy’s conduct and what is said to have been his responsibilities against any usual or normative corporate practices. None have been identified. All that ASIC has done has been to point to the statutory language of s 180(1) of which it says Mr Healy has fallen foul.
- Let me deal with another dimension. What did the chairman undertake to do or represent that he would undertake to do? The latter question may inform or be part of the foundation to assess expectation. But of course expectation may travel beyond and be informed by matters broader than the latter question.
- Further, the chairman’s represented personal qualities and skills may affect the question of expectation (Rich I at [48]). There is no reason why a chairman’s represented special qualifications and experience ought not be considered in this context. Indeed, they may have formed part of what the chairman represented as demonstrating his suitability for the position in the first place, which may inform expectation.
- So position, responsibilities and represented personal qualities all feed into the question of expectation.
- Of course though, one has to be careful of this notion of represented personal qualities let alone the description of “expert directors”. Mr Healy was a lawyer director. But his legal experience was in, inter-alia, real estate. Of course, TA required real estate for its activities, but he was not appointed the chairman for that skill set. And nor was he there to give expert legal advice to the board on that or any other matter.
- Further, I have considered the position of Mr Healy as a member of the audit and risk committee and as to whether that should form part of the matrix of circumstances informing his responsibilities. But he was an ex officio member; in other words, whoever was the chairman was a member of that committee. Further, I do not think that his membership of that committee adds anything to the nature of his responsibilities relevant to ASIC’s alleged contraventions.
- Finally, I have not talked separately about Mr Healy’s role as the president. It is convenient for present purposes to make the assumption that this role added no additional dimension to his relevant legal duties that I need to consider over and above his duties as chairman. Certainly, no additional dimension was drawn to my attention by the parties."
(...)
“CONCLUSION
- As for ASIC’s case against Mr Mitchell, I have found for ASIC on some parts of its case concerning the conduct of Mr Mitchell in the latter part of 2012 that in my view amounted to contraventions of s 180. But I have rejected the balance of its case. I will hear further from the parties as to the consequential orders and directions that I should make concerning the penalty phase and other matters.”
LINKs con comentarios sobre el caso / su situación:
https://www.theguardian.com/australia-news/2020/jul/31/harold-mitchell-found-to-have-breached-duties-as-tennis-australia-director-but-most-of-asics-claims-thrown-out
https://www.msn.com/en-au/finance/markets/harold-mitchell-wins-court-battle-against-asic-over-24300m-australian-open-tennis-tv-deal/ar-BB17ozwL
https://www.smh.com.au/business/companies/asic-v-harold-mitchell-tennis-case-serves-up-ace-drama-20191211-p53ix5.html
Australia: the role, responsibilities and duties of the company chairman: Judgment was delivered today by Beach J , sitting in the Federal Court , in Australian Securities and Investments Commission v Mitchell (No ...
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