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Financial Sector (Shareholdings) Bill 1998

Part 6 Civil liability

   

42   Civil liability of corporations

State of mind

             (1)  If, in a civil proceeding under this Act in respect of conduct engaged in by a corporation, it is necessary to establish the state of mind of the corporation, it is sufficient to show that:

                     (a)  a director, employee or agent of the corporation engaged in that conduct; and

                     (b)  the director, employee or agent was, in engaging in that conduct, acting within the scope of his or her actual or apparent authority; and

                     (c)  the director, employee or agent had that state of mind.

Conduct

             (2)  If:

                     (a)  conduct is engaged in on behalf of a corporation by a director, employee or agent of the corporation; and

                     (b)  the conduct is within the scope of his or her actual or apparent authority;

the conduct is taken, for the purposes of a civil proceeding under this Act, to have been engaged in by the corporation unless the corporation establishes that it took reasonable precautions and exercised due diligence to avoid the conduct.

Extended meaning of state of mind

             (3)  A reference in subsection (1) to the state of mind of a person includes a reference to:

                     (a)  the knowledge, intention, opinion, belief or purpose of the person; and

                     (b)  the person’s reasons for the intention, opinion, belief or purpose.

Extended meaning of director

             (4)  A reference in this section to a director of a corporation includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, a State or a Territory.

Extended meaning of engaging in conduct

             (5)  A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.

43   Civil liability of persons other than corporations

State of mind

             (1)  If, in a civil proceeding under this Act in respect of conduct engaged in by a person other than a corporation, it is necessary to establish the state of mind of the person, it is sufficient to show that:

                     (a)  the conduct was engaged in by an employee or agent of the person within the scope of his or her actual or apparent authority; and

                     (b)  the employee or agent had that state of mind.

Conduct

             (2)  If:

                     (a)  conduct is engaged in on behalf of a person other than a corporation by an employee or agent of the person; and

                     (b)  the conduct is within the employee’s or agent’s actual or apparent authority;

the conduct is taken, for the purposes of a civil proceeding under this Act, to have been engaged in by the person unless the person establishes that he or she took reasonable precautions and exercised due diligence to avoid the conduct.

Extended meaning of state of mind

             (3)  A reference in this section to the state of mind of a person includes a reference to:

                     (a)  the knowledge, intention, opinion, belief or purpose of the person; and

                     (b)  the person’s reasons for the intention, opinion, belief or purpose.

Extended meaning of engaging in conduct

             (4)  A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.