ASIC v Vizard

While ASIC’s Media Release simply stated the facts (Stephen William Vizard has been banned from managing any corporation for 10 years and ordered to pay pecuniary penalties of $390,000), the media have been critical of both the process (civil not criminal charges) as well as the result.

For the record, here is Mr Justice Finkelstein’s Reasons for Judgment.

Vizard pleaded guilty to breaches of Section 183(1) of the Corporations Act (and its predecessor s 232(5)) which provides:
b. “A person who obtains information because they are, or have been, a director or other officer or employee of a corporation must not improperly use the information to:
gain an advantage for themselves or someone else; or cause detriment to the corporation.”

He admitted carrying out share dealings for his benefit using information obtained while a director of Telstra.

Some key quotes:

27. Sections 283 and 183 can on one level be regarded as prohibiting conduct which is not regarded as serious.  The maximum penalty that can be imposed in a civil proceeding for the contravention of these and other civil penalty provisions is $200,000.  This is despite the fact that a contravention holds great potential for profit and may cause much harm.  In a criminal prosecution (and after 13 March 2000 there could be both a civil and criminal prosecution for the same conduct — see s 1317P of the Corporations Law), the maximum penalty was more severe, namely imprisonment for a period not exceeding five years plus a fine not exceeding $200,000.

28. The sections also bear the stamp of “regulatory offences”.  On a daily basis, a director of a large public company will come across information that is not available to the public or even to the company’s shareholders. According to the common law a director is denied the ability to use such information for his or her own purposes.  It does not matter that the director’s action causes no harm to the company or does not rob it of an opportunity which it might have exercised for its own advantage:  Regal (Hastings) Ltd v Gulliver [1967] 2 AC 134.  This rule admits of few
exceptions.  Parliament realised that the common law was too often ignored.  The temptation to make an improper profit was too great.  So Parliament decided to act.  The Companies Acts were amended to create an offence if a director misused information obtained by reason of his fiduciary position.  It is in this sense that the sections are regulatory in character, directed to avoiding the
potential harmful consequences of a particular type of conduct.

29. But s 232 and s 183 have another equally important purpose.  They seek to establish a norm of behaviour that is necessary for the proper conduct of commercial life and so that people will have confidence that the running of the marketplace is in safe hands.  For this reason a contravention of s 232 or s 183 carries with it a significant degree of moral blameworthiness.  There
is moral blameworthiness because a contravention involves a serious breach of trust…

31. In the present case, punishment need not take into account personal deterrence or rehabilitation.  The defendant admitted his wrongdoing prior to the institution of this proceeding and, through his counsel, has made a statement in open court expressing his unreserved contrition for his wrongdoing. He apologised to his family, his colleagues, his friends and the community as a
whole.  His brother, himself a man of high repute, has said that the defendant is deeply remorseful for his wrongdoing, has faced up to the fact that what he did was utterly wrong and intends to make it up to the community he has so badly let down.  Professor Vizard said that in his opinion the defendant will not make the same mistake again.  ASIC accepts this to be a correct assessment of the situation and so do I.

32. Nevertheless, as I have been at pains to point out, an offender such as the defendant deserves punishment for his moral culpability.  The contraventions in question involved a breach of trust.  I have already said that in each case the breach was serious.  Shares in Sausage and Keycorp were purchased in hopes of recovering a sizeable profit.  The trades were profitable.  The fact that no profit was realised is beside the point.  That was due to the wholly fortuitous decline in the share market.

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