Are all directors created equal? Reassessing the role of the chair in the light of ASIC v Rich

In 1963, on the steps of the Lincoln memorial in Washington, DC, Martin Luther King Jr made it known 'that all men are created equal'. Few people would argue with Dr King's philosophy but it would appear that company directors might be an exception to the rule. Indeed, equality in the boardroom is a different matter altogether; a difference made more palpable by the New South Wales Supreme Court decision in ASIC v Rich on 24 February 2003. The role of company directors has been in the international spotlight for some time now as a result of numerous high profile corporate collapses. Australia has not been alone in reconsidering its position on corporate governance, through, for example, the ASX's Corporate Governance Council, with the Higgs and Smith reviews in the United Kingdom and the Sarbanes-Oxley Act 2002 in the United States looking at similar issues. Predominantly, discussion concerning the chair of the board has revolved around issues of independence, with less attention being given to the legal responsibilities and accountabilities. However, these critical concerns came to the fore in the decision of Austin J in ASIC v Rich.