An Analysis of the use of Stepping Stones Liability against Company Directors and Officers

Abstract

A controversial development in the law of directors’ duties has been the use by the Australian Securities and Investments Commission (ASIC) of the ‘stepping stones approach’ to directors’ liability whereby ASIC argues that a director or officer contravened their duty of care by causing or failing to prevent their company from contravening the Corporations Act 2001 (Cth). The growing controversy about this form of liability is reflected in the conflicting views of commentators, the increasing number of stepping stones cases, and the recent decision of the Full Federal Court in Cassimatis v Australian Securities and Investments Commission in which the judges were divided on the merits of this form of liability. The authors discuss whether stepping stones liability is appropriate and the boundaries of this type of liability. They then provide the results of their study of all stepping stones liability cases. The issues studied include ASIC’s success rate in its stepping stones litigation, the types of companies subject to this litigation, the statutory provisions alleged by ASIC to have been contravened by the companies, and the positions held by defendants in the companies.

Keywords: directors' duties; enforcement; directors' duty of care; Australian Securities and Investments Commission