KWM annual digest of judgments and proceedings against directors

In this digest we provide a summary of key judgments and proceedings against directors in Australian courts and tribunals in 2023.

We summarise court judgments and proceedings instigated by the Australian Securities and Investments Commission (ASIC) as well as private litigants, workplace health and safety proceedings and environmental proceedings.

Our review of 2023 cases highlights that ASIC continues to take a “stepping stones” approach to cases involving breaches of directors’ duties, whereby ASIC first seeks to prove that the relevant company has breached its legal obligations. ASIC then argues that a director breached their duties under the Corporations Act 2001 (Cth) (Corporations Act), often the duty of care and diligence under section 180, by failing to prevent the relevant company from breaching its legal obligations when a breach was reasonably foreseeable. Interestingly, in one case, ASIC v Wilson (No 3) [2023] FCA 1009, there was no associated claim that the company itself was in breach, and instead ASIC relied on a potential breach of the Corporations Act by the company as evidence of a director’s breach of his duties. This approach, which the Court accepted was permissible, is an extension of the “stepping stones” technique.