AUSTRALIA Law and Practice Contributed by: Joachim Delaney and Ranjani Sundar, HFW
Reform (Contributory Negligence and Appor - tionment of Liability) Act 2001 (SA) Section 12). 2.9 Compelling Witnesses to Give Evidence Upon the request of a party to proceedings, the court may issue a subpoena to compel a person to attend court to give evidence. Unless other - wise specified within the Uniform Evidence Acts, every person is competent to give evidence; and a person who is competent to give evidence about a fact is compellable to give that evidence (pursuant to Section 12 of the Evidence Act 1995 (Cth)). There are limited exceptions that primar - ily relate to the State or persons in government positions, such as a member of a house of par - liament. A person ordered by the court to give evidence may be entitled to refuse to answer questions on the basis of certain privileges, such as the privilege against self-incrimination or legal pro - fessional privilege. 3. Corporate Entities, Ultimate Beneficial Owners and Shareholders 3.1 Imposing Liability for Fraud on to a Where the directing mind and will of the compa - ny commits an offence, the company, as a legal person, can be liable for the commission of the offence by virtue of the criminal directing mind and liability will be attributed to the company itself (Tesco Supermarkets v Nattrass [1972] AC 153; Mousell Brothers Ltd v London and North- Western Railway Co [1917] 2 KB 836) applied in Perpetual Trustee Company Ltd v Pascoe Part - ners Custodian Services Pty Ltd [2025] WASC Corporate Entity Criminal Liability
82 at [24], [39]-[40]. For instance, directors and managers, who are concerned with the com - pany’s management, can be regarded as the directing mind and will of the company to the extent that they control the company’s opera - tions. Consequently, the states of mind of these directors are regarded as that of the company itself (H L Bolton (Engineering) Co Ltd v T J Gra - ham & Sons Ltd [1957] 1 QB 159). Sections 12.2 and 12.3 of the Criminal Code Act 1995 (Cth) have been enacted to impose liability on a company for both the physical elements and fault elements giving rise to the commission of crimes by a company’s organ(s). Civil Liability Corporations are separate legal entities, such that the extent to which the owner or sharehold - ers can be held liable for the deeds of a com - pany is limited (Salomon v A Salomon & Co Ltd [1897] AC 22). However, the courts have been willing to pierce the corporate veil and impose liability on shareholders, directors and manag - ers of a company, where the corporate structure has been used as a vehicle to commit fraud (Re Darby, ex parte Brougham [1911] 1 KB 95). Such liability can be fixed on directors, particularly in the context of sole director companies where the director is also the majority and/or controlling shareholder of the company (Australian Secu - rities and Investments Commission v Caddick (2021) 395 ALR 481). Professional advisers to a company may also be liable where their advice amounts to aiding, abetting, counselling, or procuring a contraven - tion (Corporations Act 2001 (Cth) Section 79). For instance, in the decision of ASIC v Somer - ville & Ors (2009) 77 NSWLR 110, a solicitor, who provided legal advice to company directors that
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