We`ve suffered enough, say Hardie bosses

The corporate watchdog wants them fined and banned from sitting on boards but
several of 10 disgraced former directors of James Hardie Industries say they have
already been punished enough.
In a civil penalties hearing in the NSW Supreme Court on Monday, the Australian
Securities and Investments Commission (ASIC) outlined the penalties it wants imposed
on a former James Hardie board, found earlier this year to have breached the
Corporations Act.
In a judgment delivered in April, Justice Ian Gzell found three former executives
and seven non-executive directors made the breaches during the establishment of an
asbestos compensation trust in 2001, and a corporate restructure in 2003.
Key to the case was a James Hardie press release approved by the board in February
2001 that contained misleading and deceptive comments about the company's ability to
meet its asbestos compensation liabilities.
ASIC is seeking heavy penalties against all directors especially the executive
members of the board.
The corporate watchdog wants former chief executive Peter Macdonald disqualified
from managing a company for 12-16 years and a fine of between $1.47 million and
$1.81 million.
Former James Hardie general counsel Peter Shafron should face a minimum
disqualification of eight years and a fine of between $350,000 and $450,000, ASIC
says.
And a minimum six year disqualification and a fine of $150,000 to $250,000 is being
sought against former chief financial officer Phillip Morley.
The non-executive directors should be disqualified from managing a company for at
least five years and fined between $120,000 and $130,000, ASIC said.
Among them are former director Meredith Hellicar, who later became James Hardie's
chairwoman and has now resigned from all boards, and current Telstra director Peter
Willcox.
ASIC barrister Tony Bannon, SC, called for the court to make an example of the 10,
saying fines and bans would serve as a deterrent to other corporate directors.
"It protects the public by ensuring that ... generally speaking others are not
encouraged or persuaded to engage in such behaviour," he said.
Peter Macdonald's legal team argued for a lower-range penalty than that sought by ASIC.
But the remaining defendants, including James Hardie Industries NV, argued for
exoneration.
Ms Hellicar resigned from her positions on the board of AMP Ltd and Amalgamated
Holdings Ltd a day after April's judgment found her a most unreliable witness.
Her barrister, Tom Bathurst, QC, argued she should be exonerated because she had
already suffered and her predicament had sent a clear message to the corporate
world.
"If ever general deterrence has been satisfied, what has happened in this case
provides what I'll call an ample dose of it," Mr Bathurst told the court.
Mr Willcox has announced his resignation from the Telstra board but will remain in
the job until November at the request of the company.
His barrister, Tom Jucovic, QC, described Mr Willcox's situation as a "de facto
disqualification", and argued further measures were not warranted.
ASIC disagreed, saying exoneration would send the wrong message.
"If a defendant has sufficient hide to withstand publicity the message would be then
`you don't have to worry about disqualification'," Mr Bannon said.
Over 20 barristers have been present in court during the case, which has been
running for about 10 months.
Tony Wood, counsel for former non-executive director Dan O'Brien, indicated the
argument around costs - still to be held - involved tens of millions of dollars.
Justice Ian Gzell is expected to hand down his decision in a matter of weeks.