This is a service specifically targeted at the needs of busy non-executive directors (NEDs). We aim to give you a ‘heads up’ on the things that matter for NEDs in the week ahead – all in two minutes or less.

In this edition, we discuss the publication of sector-specific disclosure guidance by the Taskforce on Nature-related Financial Disclosures (TNFD), the report of the Senate Economics References Committee in connection with its enquiry into the Australian Securities and Investments Commission (ASIC), ASIC’s disqualification of a director for acting improperly, and guidance published by the Australian Competition and Consumer Commission (ACCC) for businesses collaborating to achieve positive environmental outcomes. We also examine the Takeovers Panel’s (Panel) decision to make a declaration of unacceptable circumstances in relation to the affairs of Sequoia Financial Group Limited (Sequoia) and a decision by the Federal Court of Australia in declaring that PayPal Australia Pty Limited (PayPal) used an unfair contract term in its standard form contracts.

In Risk Radar, we examine the potential for reliance by class action applicants for solicitors’ common fund orders in place of standard litigation funding, which could encourage a spike in class actions. 

Governance

TNFD publishes sector-specific disclosure guidance and announces increase in adoption of corporate reporting recommendations. 

On 28 June 2024, the TNFD announced the publication of a suite of sector-specific resources to assist reporting of nature-related issues and reported a 30% increase in the adoption of the TFND recommendations on nature-related financial disclosures since January 2024. The new guidance covers eight sectors with high impacts on the environment, being aquaculture, biotechnology and pharmaceuticals, chemicals, electric utilities and power generators, food and agriculture, forestry, pulp and paper, metals and mining, and oil and gas. The TFND further published additional guidance for financial institutions, which covers recommended disclosures and disclosure metrics for organisations in the financial sector, and additional guidance on value chains which is aimed at assisting organisations to analyse their upstream and downstream value chains.

Regulation

Senate committee report labels ASIC a comprehensive regulatory failure. 

On 3 July 2024, the report by the Senate Economics References Committee in connection with its inquiry into the capacity and capability of ASIC to undertake proportionate investigation and enforcement action arising from reports of alleged misconduct was published. The report scathingly found that ASIC’s capacity to respond to corporate misconduct is compromised by significant structural, resourcing and cultural issues, and that the regulator’s approach to investigation and enforcement “fails to deliver justice to the victims of corporate crimes, undermines economic productivity, and does not deter future poor behaviour”. It recommends (among other things) that the Australian Government recognises that ASIC has “comprehensively failed to fulfil its regulatory remit”, and strongly considers separating ASIC’s functions between a companies regulator and a separate financial conduct authority.

ASIC disqualifies director for five years for acting improperly. 

On 3 July 2024, ASIC announced that it disqualified Mr Christian Oey from managing corporations for the maximum period of five years due to his involvement in the failure of three companies. ASIC considered that Mr Oey “acted improperly and failed to meet his obligations as a director and officer” by: (a) poor financial management (including a failure to meet taxation obligations); (b) improperly using his position to gain an advantage for himself and others; (c) failing to prevent the incurrence of debts by an insolvent company; (d) using trust monies for unauthorised purposes to the detriment of a company and its investees; and (e) breaching undertakings given to the Federal Court regarding the property of one of the companies.

ACCC publishes draft guide on competition considerations for sustainability collaborations. 

On 8 July 2024, the ACCC announced the publication of a draft guide to assist businesses collaborating to achieve positive environmental outcomes to consider and understand potential competition law risks. The guide seeks to: (a) address misconceptions which may deter businesses from pursuing environmental initiatives which are not prohibited by competition law; (b) explain where competition risks do arise and where an ACCC authorisation may be appropriate, and (c) provide information on the authorisation process. Public consultation on the draft guide is open until 26 July 2024.

Legal

Takeovers Panel makes declaration of unacceptable circumstances in relation to the affairs of Sequoia Financial Group Limited. 

On 1 July 2024, the Panel announced that it had made a declaration of unacceptable circumstances in relation to an application dated 15 May 2024 by Sequoia in relation to its own affairs concerning alleged undisclosed associations between certain Sequoia shareholders (Requisitioning Shareholders). As discussed in a previous edition of Boardroom Brief, the application concerned a general meeting to remove two directors of Sequoia and the purchase of additional Sequoia shares resulting in increases in the collective voting power of the Requisitioning Shareholders. In the Panel’s media release, the Panel considered that the association between the Requisitioning Shareholders went “beyond convening the meeting and extended to their being associated in relation to voting at the meeting … for the purpose of controlling or influencing the composition of Sequoia’s board and the conduct of Sequoia’s affairs”. The Panel declared the circumstances were unacceptable because (among other things) the acquisition of shares by the Requisitioning Shareholders breached the Corporations Act 2001 (Cth) and the substantial holder provisions. The Panel is still considering final orders in relation to the application.

Federal Court finds PayPal used unfair contract term. 

On 5 July 2024, ASIC reported that the Federal Court of Australia declared a term used by PayPal in its standard form contracts with small businesses was unfair. ASIC brought the proceedings against PayPal in September 2023 in relation to PayPal’s financial services guide, product disclosure agreement and user agreement. Justice Moshinsky held that this term was unfair because it permitted PayPal to retain erroneously charged fees to small businesses where the small business did not notify PayPal of the erroneous fee charge within 60 days of the fee appearing on its account statement. His Honour declared this unfair term void and ordered that PayPal be restrained from applying, relying or enforcing this term in its contracts.

Risk Radar

Common fund orders – reducing reliance on litigation funders? 

As discussed in a previous edition of Boardroom Brief, the current landscape for class actions in Australia is mired in concerns over an increase in class action ‘lawfare’ backed by wealthy litigation funders. The ‘groundbreaking’ decision handed down by the Federal Court in R&B Investments Pty Ltd (Trustee) v Blue Sky [2024] FCAFC 89 on 5 July 2024 is a significant development in the class action space. The decision could encourage solicitors, on behalf of their successful class action clients, to ask the judicial system to make a ‘solicitors’ common fund order’. This is, in effect, an order that legal fees incurred are deducted from the total settlement and awarded to solicitors before distribution to all affected class members. Commentators have noted that the ramifications of this are as follows: (1) class action applicants all benefit from the outcome and contribute proportionally to the legal costs incurred, rather than only those applicants who signed a retainer with the lawyers paying such costs; and (2) class action applicants and lawyers may be seen to have more control over the funding aspect, thereby reducing their reliance on litigation funders to finance class actions. Directors should take note that this development may incentivise class action applicants, given the perception that lowering the costs of bringing class actions may make ‘lawfare’ appear more accessible.