The corporate watchdog’s case against mining giant Rio Tinto and its former executives Tom Albanese and Guy Elliott has been pushed back until 2022 so both men can be vaccinated for the coronavirus before travelling to Australia to testify.
While a vaccine is expected to be rolled out within months, the Federal Court has taken an ultra-cautious approach and decided to vacate the trial originally scheduled for March 2021 given the high infection rate in the US.
The Australian Securities and Investments Commission launched civil court action against Rio Tinto, former CEO Mr Albanese and CFO Mr Elliott alleging they engaged in misleading and deceptive conduct over the valuation of the company’s Mozambique assets. Rio Tinto, Mr Albanese and Mr Elliott are vigorously defending the Australian case.
The case centres on Rio Tinto’s 2011 acquisition of some coal assets in Mozambique for $US3.7 billion. Those assets were sold just three years later for only $US50 million. ASIC alleges Rio’s 2011 annual report misrepresented the value of the reserves. ASIC is seeking fines and to have both men barred from being a director of an Australian company.
The court had been mulling potentially holding the trial over video conference, however, New Jersey-based Mr Albanese and London-based Mr Elliott both successfully argued it would be fairer to them to be in Australia during the trial to instruct their solicitors. The court was also facing the mammoth task of managing the trial across three locations in separate time zones – Sydney, New Jersey, London.
ASIC had asked the court the refuse requests by Mr Albanese and Mr Elliott’s lawyers to delay the trial so that both men could attend the matter in person.
In requesting the trial be delayed, Mr Albanese’s lawyers argued it was too risky for him to fly to Australia ahead of the trial given he was 63 years old and therefore more at risk of coronavirus if he was forced to travel for the March 2021 trial.
“Because of the significant health risks associated with international travel, particularly for a person of his age, he, understandably, does not wish to incur those risks, in the absence of effective vaccination.” Justice David Yates said in approving the request to reschedule the trial at a later date.
On the other hand Mr Elliott, who until the regulatory action was on the board of Cadbury and Royal Dutch Shell, said he was keen to defend the case that he would risk infection to travel to Australia given the reputational impact he had already suffered from the allegations.
“Mr Elliott is concerned about the possibility of contracting the COVID-19 virus during travel from the United Kingdom to Australia.” Justice Yates said.
“However, he regards his presence in Australia as being so important to the conduct of his defence and his ability to provide instructions to his legal representatives in real-time, that he is prepared to undertake that travel, if permitted to do so by the Australian authorities”.
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