ASIC loses big as Federal Court clears Wal King and Terracom directors of misleading market

A Federal Court judge has dealt the corporate regulator a major defeat, clearing one-time construction heavyweight Wal King and other former and current directors of coal company Terracom of allegations they misled investors.

Handing down his decision on Friday, Justice Ian Jackman criticised parts of the civil case argued by the Australian Securities and Investments Commission as “plainly untenable” and “unworthy”.

The ASIC lawsuit alleged Mr King, the listed Terracom’s former chair, former director Craig Ransley, former chief financial officer Nathan Boom and current chief executive Danny McCarthy misled the market over a whistleblower’s claim the listed company was rigging the quality of its coal to get better prices from its customers.

However, in clearing the men, Justice Jackman said ASIC “should have known” that most of the charges “had no realistic chance of success, except perhaps in relation to some minor aspects”.

The regulator claimed that the quartet misled investors by approving public and ASX statements in early 2020 that said the listed Terracom had been “exonerated” of whistleblower Justin William’s allegations that quality certificates on thermal coal produced by the Blair Athol mine in Queensland had been manipulated.

ASIC also alleged the men failed to act with the requisite degree of care and diligence in the discharge of their duties as directors and officers of the company.

It said on Friday it would review Justice Jackman’s decision before deciding on an appeal.

Mr King was one of Australia’s highest-profile chief executives as head of Leighton Holdings, running the construction giant for 23 years before retiring in 2010.

ASIC’s case included the claim that he was obliged as a director to read a PwC report commissioned by Terracom’s lawyers Ashurst that found quality “inconsistencies” in 12 of 14 coal shipments tested.

Terracom’s testing partner, ALS, separately disclosed in February 2020 after Mr Williams’ claims that it found some quality certificates had been changed “without justification”.

However, Justice Jackman rejected ASIC’s arguments about Mr King, saying “none of the other directors or executives ever suggested to Mr King that the PwC report required consideration or raised concerns”.

“On 27 February 2020, Mr King attended a meeting with TerraCom’s auditors (EY), who then had a separate meeting with Ashurst for 1½ hours for the purpose of going through the PwC report, before returning and confirming that EY had no issue with the PwC report and would provide a clean half-yearly report the following day, which is what occurred,” Justice Jackman said.

He also described as “one of the more extraordinary features of ASIC’s case” its contention that Mr McCarthy and Mr Boom should themselves have investigated Mr Williams’ allegations, “despite the fact that Mr McCarthy and Mr Boom were the subject of the allegations made by Mr Williams which were investigated by PwC”.

“They were plainly in a position of conflict, with a real and sensible personal interest in the investigation or inquiries,” he said.

“The position taken by ASIC is plainly untenable.”

A separate ASIC whistleblower victimisation case against Terracom is still in court.