Mr Brown and Ms Hellicar
216The submissions made on behalf of Mr Brown and Ms Hellicar sought to minimise the seriousness of their contraventions. Mr Gleeson described their "failing" as giving insufficient attention to the ASX Announcement in the course of a long and complex meeting held in circumstances of considerable urgency. He said that Mr Brown and Ms Hellicar had fallen down in only one "aspect of their task", thereby allowing an Announcement to be released to the market which presented the separation in more emphatic terms than was appropriate.
217It is true that, as Heydon J observed, the Meeting was long and required the Board to consider important issues of some complexity (HC Judgment, at [206]). It is also true, as the primary Judge found (Penalty Judgment, (at [85]-[86]) that the contraventions by the Australian Directors were "isolated incidents in lengthy careers of service ... performed by each of them with competence, diligence and honesty".
218Nonetheless, in my view, Mr Gleeson's description of the contraventions significantly understates the gravity of the departure from the standards of care and diligence reasonably to be expected of Mr Brown and Ms Hellicar. The issues addressed at the Meeting were not new. On the contrary, the separation proposal had been under consideration by the Board for well over a year. The proposal was of critical importance to the future of the James Hardie group. As the plurality judgment in the High Court noted (at [55]), the directors of JHIL themselves regarded the funding of the Foundation as a "centrally important issue". The lack of adequate funding for asbestos claimants was the very reason why the Board rejected the "net assets" model proposed at the January 2001 meeting. As the plurality judgment in the High Court also found, it is not to be assumed that the directors approved the separation proposal without forming a view as to the adequacy of the funding for asbestos claimants.
219It is correct, as Mr Gleeson submitted, that Mr Brown and Ms Hellicar, and the other Australian Directors, did not see the Draft ASX Announcement until it was tabled at the Meeting. But they had the opportunity to read it and (as the declarations of contravention record) knew that the Draft ASX Announcement conveyed representations that in fact turned out to be false. As the primary Judge found, all that was required for the Australian Directors to follow what was being conveyed to the ASX by the Announcement was a capacity to read English.
220Mr Gleeson submitted that the probabilities are that the Draft ASX Announcement was not read out at the Meeting and was not the subject of any specific statement as to its contents. He also pointed to the informal manner in which the resolution approving the Announcement was made, indicating that no formal vote was taken. While these propositions can be accepted, the fact is that each of the Australian Directors was aware of the representations made in the Draft ASX Announcement when they approved its release. Their contraventions lay in voting to approve the Announcement's release without considering whether the representations could properly be made in view of the material presented to the Board at the Meeting and provided on earlier occasions.
221Mr Brown and Ms Hellicar, like the other non-executive directors, knew that the making of the separation decision and the terms on which the separation was to be effected had to be disclosed to the ASX (HC Judgment, at [37]). They appreciated that the contents of the ASX Announcement were critical to the strategy being pursued by JHIL. The central objective of the communications strategy was to convince stakeholders that sufficient assets were available to meet all legitimate present and future claims (Penalty Judgment, at [82]). The detailed communications strategy presented to the Meeting identified the need to turn uncertainty to JHIL's advantage. The strategy repeatedly stressed the importance of providing reassuring messages to the various stakeholders including the New South Wales Government, unions, law firms, asbestos victims and shareholders. The terms of the Draft ASX Announcement, as must have been obvious to anyone who read it, were calculated to and (as the primary Judge found) did influence the market.
222The failure by Mr Brown and Ms Hellicar to appreciate at the time of the vote that the Draft ASX Announcement was misleading, on the findings of the primary Judge, cannot simply be regarded as a momentary lapse at the end of a long meeting. The information presented to the Board on a number of occasions prior to the Meeting made it abundantly clear that any estimates of JHIL's future liabilities to legitimate asbestos claimants, including the estimates made by Trowbridge, were uncertain and could not provide a reliable measure of JHIL's exposure. This was so regardless of management's failure to draw the issue of super-added inflation specifically to the attention of the Board.
223The message was reinforced at the Meeting itself. The slides provided to the Meeting as part of the Green Project presentation made it clear that the performance of the fund was based on a variety of assumptions. The slides recorded that the earlier Trowbridge analysis had been revised and that higher claim numbers were now predicted. Future funds availability was said to depend on Trowbridge cashflows (described as "most likely") and assets earnings ("some known and some predicted"). Nowhere in the presentation was it suggested that the funds available to the Foundation would certainly be sufficient to meet all legitimate present and future claims.
224The Cashflow Model, explained in some detail at the Meeting, set out the assumptions on which the estimates were based. The evidence given by Mr Brown and Ms Hellicar at the trial was that if they had appreciated the contents of the Draft ASX Announcement, they would not have approved its release. They said that an assertion that funding would certainly be adequate could not be supported. Their evidence reinforces the inference that no director, acting with reasonable prudence, could have understood the Cashflow Model as presenting anything other than a series of predictions, the accuracy of which would depend on uncertain future developments.
225An example of the consequences of a departure from the stated assumptions can be seen from the projected rate of return of 11.7 per cent per annum on liquid assets in the fund. The chart entitled "Sensitivity for earnings rates", presented to the Board, indicated that if the earnings rate fell by just one per cent per annum (to 10.7 percent), the fund would be depleted in under 25 years. This would be so even if the "most likely" scenario for future claims proved to be accurate. The "Sensitivity analysis for net assets remaining" showed that even if the projected earnings rate of 11.7 per cent turned out to be accurate, on the "high scenario" for claims the fund would be exhausted in under 20 years. A director exercising reasonable care in considering such important documents could hardly fail to appreciate that a lower than projected rate of earnings coupled with a higher rate of claims would exhaust the fund very much sooner than 20 years from its establishment. Such an outcome could not possibly satisfy the claims likely to be made in the future by asbestos victims.
226I do not accept that the seriousness of the failure to appreciate the falsity of the representations in the ASX Announcement can be attributed to the urgency with which decisions had to be made at the Meeting. As the High Court found (at [50], [188], [213]), the apparent urgency was in part attributable to the desire to avoid the impact on JHIL's accounts of the new accounting standard that was about to be introduced. Another element of the urgency, as is apparent from the communications strategy provided to the Board, was to release the ASX Announcement at the same time as JHIL's third quarter results. This was designed to present the Foundation as a "business story" and, in effect, to divert attention from the broader questions of the adequacy of the funding arrangements.
227The directors of JHIL must have been aware from the documentation provided to the Meeting why approval of the separation proposal was seen as urgent. The urgency was self imposed. In any event, the fact that approval of the ASX Announcement was treated by management as urgent in no way detracted from the need for Mr Brown and Ms Hellicar and the other non-executive directors to give careful consideration to whether the language used in the Draft ASX Announcement was or was not misleading.
228Because Mr Brown and Ms Hellicar insisted in their evidence that they had not approved the Draft ASX Announcement at the Meeting, they have never given an explanation for their failure to appreciate what should have been manifest to a director discharging his or her duties with a reasonable degree of care and diligence. Except for the submissions made in this Court on their behalf, some of which rest on hypotheses rather than evidence, neither Mr Brown nor Ms Hellicar has sought to explain how such experienced and apparently capable directors could have approved the Draft ASX Announcement without appreciating that it contained obviously misleading statements of such importance to the market and the community at large.
229Mr Gleeson submitted that the Board had been let down by management. There is no doubt that the contraventions by Mr Macdonald, Mr Shafron and Mr Morley contributed to the circumstances leading to the appellants' contraventions. Management, after all, was responsible for drafting the Draft ASX Announcement. But the findings that Mr Brown and Ms Hellicar failed to discharge their responsibilities rest on the now undisputed proposition that they were not entitled simply to rely on management when voting to approve the release of a crucial document presented to the Board for its endorsement and imprimatur.
230Moreover, this is not a case where the conduct of management, however egregious, excuses or significantly mitigates the seriousness of the particular contraventions found against the Australian Directors. Mr Gleeson pointed out, correctly, that the information provided to the non-executive directors at the Meeting was incomplete, most notably in relation to the question of superimposed inflation and the limited role played by PwC and Access Economics in reviewing the Cashflow Model. But the Australian Directors had material before them at the Meeting, and had received material at earlier meetings, which should have made it abundantly clear to each of them that the Draft ASX Announcement, if released in that form, would be seriously misleading and have the potential to cause significant harm to investors and others.
231In making these observations, I have taken into account the exchange between Mr Brown and Mr Macdonald that took place at the Meeting (see at [99] above). Mr Macdonald, after giving an evasive response to Mr Brown's inquiry about the sufficiency of funds, said that on the basis of the "best actuarial modelling" there were sufficient funds to meet future claims. That response fell far short of justifying the unqualified terms of the Draft ASX Announcement. When taken in conjunction with the material before the Board, if anything it should have alerted Mr Brown and the other non-executive directors to the need to scrutinise the accuracy of the Draft ASX Announcement very closely.
232The contraventions of s 180(1) of the Corporations Act by Mr Brown and Ms Hellicar were not in the most serious category of contraventions that directors can commit. They have not been shown to have been dishonest nor to have consciously appreciated the falsity of the statements made in the Draft ASX Announcement. They have each been found to have contravened the Corporations Act on a single occasion. Their contraventions, unlike those of Mr Macdonald, do not form part of a pattern of conduct demonstrating a failure over a significant period to appreciate their responsibilities as directors of a public corporation. Nonetheless, their departure from the standards to be expected was very serious indeed, the more so because it is unexplained by evidence from Mr Brown and Ms Hellicar themselves.
233The primary Judge used the word "flagrant" to describe the contraventions. That word carries a flavour of deliberate wrongdoing, which has not been established in this case. However, "flagrant" can mean "glaring" or "blatant", as well as "scandalous". If a description other than "very serious indeed" is required, I think that the actions of Mr Brown and Ms Hellicar can aptly be said to have involved a glaring failure to discharge their responsibilities as non-executive directors of JHIL on a matter of very great significance to the company and to the wider community.
234If there were no other factors to take into account, I would conclude that the departures from the standard of care and diligence reasonably expected of directors of the contraventions justify a substantial period of disqualification, notwithstanding the absence of dishonesty. A penalty of this kind is required to mark disapproval of the conduct, to demonstrate that the law upholds appropriate standards of corporate conduct, and to act as a deterrent to other company directors who might be tempted to forego their responsibilities on critical matters. Moreover, contrary to the submissions made on behalf of Mr Brown and Ms Hellicar, these were not victimless contraventions. The market operated on a false basis and by reason of the misleading ASX Announcement, the price of JHIL shares was artificially maintained (Penalty Judgment, at [104], [119]). The Draft ASX Announcement, if released (as in substance it was), clearly had the potential to mislead asbestos victims and their families and to increase their distress when the true position emerged (as it did within a relatively short time).
235There are other factors to take into account in determining whether disqualification is justified. The primary Judge (Penalty Judgment, at [343]) found, on the basis of their testimonial evidence, that each of the appellants, including Mr Brown and Ms Hellicar, is highly qualified and has had an impressive career, demonstrating care, skill and competence. He also found (at [344]) that the need for personal deterrence of the appellants was low. Moreover, the testimonial evidence was strongly in favour of their honesty and probity and established the fitness of each of the appellants to manage a company. There is no dispute that the need for personal deterrence is very low in relation to Mr Brown and Ms Hellicar (and the other appellants).
236Mr Gleeson directed attention to the details of the testimonial evidence adduced on behalf of Mr Brown and Ms Hellicar, including the additional evidence read on the appeal. I have read that evidence. It amply bears out the primary Judge's findings. The witnesses set out in some detail the work performed by each on various boards and attest to their diligence and integrity in discharging their responsibilities and their contributions to the broader community.
237Ms Hellicar receives particular praise from one of her referees (Mr Hunt) for her willingness to take on the role of chairman of James Hardie Industries NV at a time when the company was under intense scrutiny during the Special Commission of Inquiry into the Foundation in 2004. Mr Brown also contributed to the work of James Hardie Industries NV at a difficult time. He is particularly commended by one of his referees (Mr Pritchard) for his detailed attention to the wording of any releases to the ASX issued by an unrelated company of which he was a director, although this refers to a period after 2001.
238The testimonial evidence is important and its substance is accurately summarised by the primary Judge. However, I would add two comments. The testimonial witnesses all indicated in general terms that they were aware of the findings made by the primary Judge and (in their additional affidavits) those made by the High Court. It is not clear from the affidavits that they fully appreciated the nature of the contraventions and the extent of the departures from the standards of care and diligence to be expected of directors of large public companies. Just as the submissions made on behalf of Mr Brown and Ms Hellicar understate the seriousness of the contraventions, my impression is that the testimonial witnesses may well have done the same. Some of the affidavits also note that Ms Hellicar was regarded by the primary Judge as an unsatisfactory witness but assert that this does not alter the deponents' high opinion of her. They do not explain why not.
239Secondly, some of the testimonial evidence makes it even more puzzling how Mr Brown and Ms Hellicar could have read and understood the contents of the Draft ASX Announcement, yet voted at the Meeting to approve its release to the ASX. Ms Hellicar, for example, was chairman of AMP Life and, according to a fellow director (Mr Palmer), she encouraged the provision of detailed actuarial information to the board of that company and promoted discussion of issues by the chief actuary. Her experience at AMP Life must have made her familiar with actuarial concepts and the role played by assumptions in actuarial predictions, albeit in a context other than providing for long-term liabilities to persons suffering from asbestos related conditions. Mr Brown was for some years prior to his service on the Board of JHIL the chief financial officer of Brambles Industries Ltd where, according to the managing director at the time (Mr Fletcher), Mr Brown paid close attention to the wording of ASX announcements released in compliance with the company's continuous disclosure obligations.
240Mr Brown and Ms Hellicar, in common with all the appellants, pointed to the widespread publicity attracted by the case, particularly the judgment of the High Court. The appellants had suffered severe embarrassment and reputational damage. The widespread publicity accorded to the findings of the primary Judge and, more particularly, the High Court had made perfectly clear to the commercial community the standards of diligence expected of directors and the need to exercise their own judgment on matters of importance to the corporation and the community at large. The publicity ensured that the declarations of contravention, of themselves, would have the effect of general deterrence, making further penalties unnecessary.
241Reliance was placed on the judgment of Middleton J in Australian Securities and Investments Commission v Healey (No 2) [2011] FCA 1003; 85 ACSR 654. In that case, Middleton J declined to impose disqualification orders on the directors of a corporation which had failed to disclose substantial short term liabilities in its accounts. Middleton J said (at [177]) that the publicity given to the directors' breaches of duty made the need to impose disqualification orders or pecuniary penalties for reasons of general deterrence "much less than it otherwise would be". In the result, his Honour considered (at [190]) that the declarations of contravention, the refusal to relieve the directors from liability and the reputational damage inflicted on them were sufficient to serve the objective of general deterrence.
242Several points should be made about ASIC v Healey (No 2). First, as Middleton J recognised (at [103]), the guidance to be obtained from other decisions is limited, as each is clearly related to its own facts. Secondly, Middleton J did not say that widespread publicity accorded to contraventions necessarily eliminates the need to impose penalties in the interests of general deterrence. He said that, in the circumstances of the case before him, the need for general deterrence was lessened by the publicity and reputational damage. Thirdly, the decision not to disqualify the directors involved many factors other than publicity and reputational damage. Fourthly, the facts of the case were very different to those of the present case. In particular, the directors had received assurances from the auditors and management that the accounts complied with the relevant standards (at [45]-[56]). The Australian Directors in the present case were not assured by anyone at the Meeting that the Draft ASX Announcement accurately reflected the very information with which they had been presented both at and before the Meeting. While management failed to advise the Board of some matters relevant to the terms of the Announcement, the information the Australian Directors had was more than sufficient to demonstrate that the representations in the Announcement were misleading.
243The publicity accorded to this case and the severe reputational damage suffered by the Australian Directors are factors to be taken into account in determining whether a disqualification order or other penalty is justified. I do not accept, however, that these matters eliminate the need for penalties to reflect the objective of general deterrence. To accept that submission would be to give too much weight to the vagaries of media reporting or public commentary on particular cases. Moreover, in the absence of major financial reverses or reports of corporate wrongdoing, very few directors of large public corporations do not enjoy high standing and a reputation for integrity and competence. The potential for a diminution of reputation is no doubt a powerful deterrent to carelessness and an incentive to discharge responsibilities diligently. But it should not be assumed that the prospect of disqualification, with the attendant financial consequences and public obloquy attributable to the fact of disqualification, cannot have a powerful additional deterrent effect. In addition, the publicity accorded to particular contraventions does not necessarily diminish the importance of the law maintaining appropriate standards of corporate conduct by imposing disqualification orders on contravenors.
244Mr Gleeson pointed out that by the time of the hearing of the remitted appeal in this Court, Mr Brown and Ms Hellicar had each been subject to a disqualification order for a period of approximately one year and six months. Since Ms Hellicar had resigned from a number of boards following the Liability Judgment and had not reapplied for those positions after the appellants' (temporary) success in the Court of Appeal, she had served a "de facto" period of disqualification of about two years and ten months. Mr Brown was in a similar position, in that he had not sought any board appointments between the dates of the CA Liability Judgment and the HC Judgment.
245Realistically, Mr Brown and Ms Hellicar could not have expected to regain board appointments to public companies once ASIC lodged its application for special leave to appeal to the High Court. Certainly that would not have been a realistic aspiration once the High Court granted special leave to appeal on 13 May 2011. Some recognition should be given to this, although it is also necessary to take account of the fact that for the period of about one year and four months between the CA Liability Judgment and the HC Judgment, no declaration of contravention was in force and there was no legal impediment to either acting as a director of a corporation. I shall explain later (at [261]ff) how I propose that these matters be taken into account.
246Mr Brown and Ms Hellicar relied on the acknowledgements made through their counsel as evidence of contrition that should be taken into account in determining whether a disqualification order is justified. I have set out the matters recognised by counsel on their behalf (at [148] above).
247In the light of the High Court's decision, Mr Brown and Ms Hellicar recognise, as they must, that they "fell down" in their responsibilities and that their failings on that "particular matter were significant and cannot be considered trivial or minor". They also say that they understood several "lessons about corporate governance and behaviour" to be derived from the HC Judgment.
248I do not think that contrition plays a large part in determining the appropriate period of disqualification for Mr Brown and Ms Hellicar. They have chosen not to put on any evidence themselves as to their contrition. As I have noted, they have not explained how they came to approve the ASX Announcement when they knew its contents and had material before them that should have alerted them to the falsity of the representatives.
249The statements made on their behalf by their counsel do not acknowledge that, independently of the High Court's decision, their conduct represented a serious departure from the standards to be expected of non-executive directors. The flavour of the statements is that the High Court has laid down principles that may not previously have been generally understood in the corporate community but are now understood. The High Court decision was primarily concerned with a factual question, namely whether the Board of JHIL approved the Draft ASX Announcement. It did not require a High Court decision to demonstrate that approval of the release of an Announcement on a matter of critical importance required directors to pay careful attention to the representations being conveyed. They should have carried out that task by reference to the information which had been presented to them and which should have been at the forefront of their minds at the time they approved the Announcement.
250Furthermore, as I have noted, the submissions made on behalf of Mr Brown and Ms Hellicar downplayed the seriousness of their contraventions. It is difficult to demonstrate and rely on contrition when full acknowledgement has not been made of the seriousness of the contraventions themselves.
251In determining the appropriate period of disqualification (if any) this Court deals with the matter at the present date: Vines v ASIC, at [66]. The task is not one that can be approached with mathematical precision. As I have explained, a range of competing considerations must be taken into account. Minds may differ as to the weighting to be given to each of the considerations.
252In my opinion, the contraventions by Mr Brown and Ms Hellicar were sufficiently serious to justify, without taking into account mitigating circumstances personal to each of them, a period of disqualification in the order of five years. This is undoubtedly a substantial period to deny a non-executive director the opportunity to pursue his or her career, particularly for a single contravention not involving dishonesty or an intention to mislead. But a period of disqualification of this length has appropriate regard to what I have described as the glaring failure by Mr Brown and Ms Hellicar to adhere to the standards reasonably expected of them and to the harm, actual and potential, that flowed from their actions in approval of the Draft ASX Announcement. A period of five years disqualification would place the penalty below the intermediate category of serious contravention identified by Santow J in ASIC v Adler, but above the period of disqualification he identified as appropriate for less serious cases (albeit cases warranting a disqualification order).
253The mitigating factors to be taken into account include the public opprobrium suffered by Mr Brown and Ms Hellicar, their exemplary records prior to the contraventions, their contributions to the community, the absence of a need for personal deterrence, their fitness to hold office as directors of a corporation, despite the contravention and their (qualified) contrition. In the light of these matters, I think that disqualification for a period in the order of three years is justified as a penalty for their respective contraventions.
254In my opinion, the parity principle would not be offended by a penalty of three years disqualification. Mr Macdonald's contraventions were of a different order and his period of disqualification would on this basis, be five times as long.
255The Court of Appeal reduced Mr Morley's period of disqualification from five years to two years: CA Penalty Judgment, at [128]. Mr Morley's single contravention was his failure to advise the Board of the limited nature of the reviews conducted by PwC and Trowbridge. Mr Morley told the Board that they had found the Cashflow Model to be "logically sound and technically correct". He knew that the "blessing" of PwC and Trowbridge was valuable for the purposes of the communications strategy (at [21]). The failure went to the decision to establish the Foundation on the basis of sufficient funding (at [23]). The Cashflow Model was a significant matter in any decision to proceed with the separation proposal (at [24]).
256Mr Morley's testimonial evidence showed him to be competent and the need for personal deterrence was low (at [118]). There was no finding of dishonesty and no question of personal benefit (at [29], [123]). Further, the Court of Appeal expressly found that Mr Morley had acted honestly for the purposes of ss 1317S and 1318 of the Corporations Act. However, the Court of Appeal considered (at [51]) that his conduct, even if explained as negligent and an honest mistake, involved a high degree of departure from the care and diligence required by s 180(1). It also had potentially serious consequences for JHIL.
257There are similarities between Mr Morley's contravention and those of the Australian Directors. However, he was not a member of the Board, although he held a senior position in JHIL. He had the benefit of an affirmative finding of honesty in the context of his application to be relieved from liability (an application no longer pursued by any of the Australian Directors). Mr Morley's contravention, although serious, related to internal advice, while the contraventions by the Australian Directors was to approve a misleading announcement to the ASX and, in effect, to the world at large. I do not think that a penalty of two years disqualification for Mr Morley and three years for Mr Brown and Ms Hellicar involves any significant disparity.
258The Court of Appeal considered (at [118]) a period of three years disqualification to be appropriate for Mr Shafron's Superimposed Inflation contravention. Mr Shafron was also found by the Court of Appeal to have contravened the Corporations Act by failing to advise that the DOCI needed to be disclosed to the ASX, a contravention for which seven years disqualification was considered appropriate. Issues of concurrence and totality therefore arose in Mr Shafron's case (at [117]), ultimately resulting in a total period of disqualification of seven years.
259The period of three years disqualification for the Superimposed Inflation contravention recognised that Mr Shafron's contravention was similar to that of Mr Morley, but that there was a greater need for protection of the public and for personal deterrence. Again I do not think that there is any significant disparity between the three years disqualification attributed to Mr Shafron's contravention by the Court of Appeal and a period of three years disqualification for the contraventions by Mr Brown and Ms Hellicar.
260For reasons given later (at [333]-[344]), I accept the joint submission by ASIC and Mr Shafron in relation to the penalties that should be imposed for the three contraventions that have now been found against him. As a consequence, the disqualification orders made by the Court of Appeal will remain in place and Mr Shafron will be required to pay a pecuniary penalty of $75,000. The overall penalties involve issues of concurrence and totality that do not arise in the appellants' cases. The orders made against Mr Shafron do not create any disparity between his penalties and those imposed on the appellants.
261There is, however, a further factor to consider in determining the appropriate orders to be made against Mr Brown and Ms Hellicar. The primary Judge's disqualification orders against them took effect on 24 September 2009 and remained in force until set aside on 17 December 2010 by the Court of Appeal (a period of one year, two months and 23 days). The orders were reinstated by the Hight Court on 3 May 2012. The period between the Court of Appeal's judgment and the reinstatement of the disqualification orders by the High Court was one year, four months and 16 days.
262In the ordinary course, an appeal which succeeds in reducing a period of disqualification from five years to three years would simply involve substituting the lesser period of disqualification for that imposed by the primary Judge. The complication in the present case is that although the orders made by the High Court restored the original period of disqualification imposed by the primary Judge, in fact no order for disqualification against Mr Brown or Ms Hellicar was in force between 17 December 2010 and 3 May 2012.
263If the period of three years disqualification simply runs from the date of the primary Judge's orders, the period will already have expired (on 23 September 2012). If the period of three years is calculated exclusive of the period between the CA Penalty Judgment (17 December 2010) and the HC Judgment (3 May 2012), the disqualification would not expire until 10 February 2014. In the latter event, the disqualification would expire four years four months and 17 days from the date the original order took effect and one year nine months and seven days from the date of the High Court judgment.
264In my view, the disqualification orders made against Mr Brown and Ms Hellicar should take into account the unusual circumstance that the order made by the primary Judge was set aside by the Court of Appeal but subsequently restored by the High Court. During this period of slightly longer than one year and four months no disqualification order (or indeed any other order) was in fact in force against Mr Brown and Ms Hellicar. They were therefore not subject to any legal constraints on acting as directors of corporations during this period. Nor were they subject to any other penalties. On the other hand, both were subject to practical constraints that in effect, from the time ASIC lodged its application for special leave to appeal to the High Court until that Court delivered judgment, prevented them acting as directors of public companies.
265In these circumstances, some allowance should be made in favour of Mr Brown and Ms Hellicar, but not to the extent of treating them as having been subject to disqualification orders during the entirety of the period between the two judgments. Section 206C(1) of the Corporations Act permits the Court to disqualify a person for more than one period, provided that the total period of disqualification is justified: Acts Interpretation Act 1901 (Cth), s 23(b) ("words in the singular number include the plural"). On this basis, I think that the appropriate course is to fix a period of disqualification for each of Mr Brown and Ms Hellicar that operates from 24 September 2009 to 17 December 2010 (the date of the Court of Appeal judgment) and from 3 May 2012 (the date of the High Court judgment) until 30 April 2013. This produces a total period during which they will be formally disqualified from acting as directors of approximately two years and three months. However, the period of disqualification will not expire until some three years and seven months from the date the primary Judge's orders took effect. But, as I have explained, for about one year and four months of that period, no disqualification order was in fact in force.