Harold Mitchell ‘stepped over the line’ in handling of Australian Open TV deal, but is unlikely to face corporate ban

Despite a Federal Court finding Harold Mitchell “stepped over the line” on three separate occasions when dealing with a 2013 Australian Open TV deal, the famed adman isn’t likely to face a banning order, with most of the ASIC claims against him thrown out by Justice Jonathan Beach.

A hearing will be held in August to decide on Mitchell’s penalty for passing information to Seven West Media’s Bruce McWilliam while Mitchell was director of Tennis Australia.

Mitchell ‘stepped over the line’ but most of the ASIC case against him was thrown out

Mitchell and former Tennis Australia president Steven Healy faced accusations that they had breached their duties as directors by providing Seven with information during the 2012 and 2013 negotiations for the five-year rights deal of the Australian Open.

The Australian Securities and Investments Commission (ASIC) alleged Mitchell and Healy withheld information from the Tennis Australia board, didn’t report the value of the rights and failed to disclose the interest of other bidders, including Network Ten.

At the decision on Friday, Justice Breach threw out the majority of ASIC’s claims, saying only a narrow part of the claim could be sustained and that Mitchell “wasn’t a details man”. It isn’t yet clear whether ASIC will appeal the decision.

The case against Healy was dismissed entirely.

Justice Breach did find that Mitchell “stepped over the line in his dealings with Mr McWilliam”, particularly in forwarding internal Tennis Australia emails to McWilliam and disclosing elements of internal deliberations.

“His overall conduct had the tendency to undermine the stance and approach of Mr Steven Wood, the CEO [of Tennis Australia]. There were some things that he communicated with Mr McWilliam that he ought not to have done particularly in the latter part of 2012,” Justice Beach said.

“None of this ultimately caused damage to Tennis Australia and none of this was motivated by anything other than Mr Mitchell’s perception that it was in the interest of Tennis Australia that the deal with Seven was stitched up sooner and rather than later.

“His contraventions are far narrower in scope than ASIC would have it.”

The 2019 trial saw a number of executives called to the witness box, including former Nine boss David Gyngell and Ten’s Hamish McLennan. Mitchell was potentially set to face a ban from the corporate world, which would have seen him surrender his seat on the board of James Packer’s casino group, Crown Resorts.

Justice Beach said ASIC’s construction of its evidence “displayed confirmatory bias” and that its cover-up and conspiracy theories “lacked substance”.

Both sides have 28 days to lodge an appeal.


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