Hardie `did not give court full facts': [1 All-round Country Edition]
Ean Higgins, John Stapleton. The Australian [Canberra, A.C.T] 05 Aug 2004: 6.
Abstract
The inquiry has heard allegations that [Hardie] misled NSW Supreme Court judge Kim Santow in 2001 when it sought approval to move its corporate operations to The Netherlands.
Mr [Michael Slattery QC] said Hardie had tried to stave off legal action from the foundation until it had cut off all options for the foundation to get its hands on Hardie money, including by cancelling the partly paid shares.
Counsel representing the unions and asbestos victim groups, Jack Rush QC, said the foundation could seek recompense from Hardie over the alleged misleading of Justice Santow.
THE NSW Supreme Court might have blocked James Hardie Industries' bid to quarantine its asbestos liabilities if the company had given the judge the full facts, the commissioner investigating the affair said yesterday.
The comments by David Jackson QC were his first on one of the most critical aspects of Hardie's underfunding of the trust set up to pay the claims of asbestos disease victims.
If he found Hardie's conduct "entirely legal but ... rather shabby", he asked if he should say so in his findings.
Mr Jackson's comments came as unions applied more pressure to the giant building products company, with a march in Sydney and a growing campaign to boycott Hardie products.
The inquiry has heard allegations that Hardie misled NSW Supreme Court judge Kim Santow in 2001 when it sought approval to move its corporate operations to The Netherlands.
In response to questions from Justice Santow, Hardie said its Australian shell company could meet residual asbestos disease claims by calling on $1.9 billion of partly paid shares from its new Dutch parent.
But the company cancelled the shares in March last year, without telling the court or the stock exchange.
In the inquiry yesterday, Mr Jackson said there would have been various possibilities if the court had known the partly paid shares might be cancelled.
One was "the scheme wouldn't have been approved"; another that the company would not have been allowed to cancel the shares.
Those involved began presenting final submissions to the inquiry, which is due to report in September.
First to appear was Michael Slattery QC, representing the Medical Research and Compensation Foundation, the trust set up by Hardie in 2001 with $293million, and which now faces a shortfall of up to $2billion to meet claims.
Mr Slattery said Hardie had tried to stave off legal action from the foundation until it had cut off all options for the foundation to get its hands on Hardie money, including by cancelling the partly paid shares.
"There was obviously a consciousness six months before the partly paid shares were in fact cancelled that the potential creditor on the radar screen was the MRCF," Mr Slattery said.
Counsel representing the unions and asbestos victim groups, Jack Rush QC, said the foundation could seek recompense from Hardie over the alleged misleading of Justice Santow.
Mr Rush said Hardie had set out "to divorce itself from its Australian history, which has been based on the production of asbestos products".
"If an individual step involved the necessity to mislead or deceive to achieve its outcome, that would be done," he said.
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