Solly Lew is back to persecute the Coles board with an interesting and dangerous legal action trying to access board and company documents relating to the rejected KKR takeover bid – but that is only one of several potentially damaging legal-type issues about the place.

Telstra has won its own court battle to have a peak at federal government and ACCC pricing documents, while the AFR reports a High Court decision that could result in employees facing personal liability claims separate to any made against their employer, plus there’s an Australian Tax Office guideline for auditors dealing with bribes that will force companies to keep more detailed records of Third World payments.

For reasons of self-interest and principle, Crikey is all for greater access to information, but there’s also a natural worry about Australia travelling ever further down the legalistic road.

Aspects of American business are coming close to paralysis thanks to boards and senior management desperately protecting their backsides from the legal hordes.

Solly Lew’s Premier Investments – Coles’ biggest shareholder – claims it’s concerned that Coles directors might have breached their duties by failing to keep the market fully informed, failing to engage with the KKR consortium and by rejecting two proposed buy-out offers.

Thus Premier is seeking every bit of board and management paper and advice about the KKR matter. (If anyone really wants to look at a company not keeping the market informed, check out John Wilcox’s Mayne Pharma performance, but that’s another story.)

It seems this fight might boil down to a legal nicety about whether Premier is seeking access to the documents “for a proper purpose”.

The danger for all investors is that, should boards, management and advisors lose faith in their ability to keep anything secret, more effort will go into the aforementioned posterior protection than running companies. Except in exceptional circumstances, e.g. AWB, there are reasonable reasons for board remaining private.

Meanwhile the AFR reports the ATO guidelines “are aimed at helping auditors distinguish between illegal and non-deductible bribes and legitimate facilitation payments”:

Companies will have to record information such as the amount paid, the identity of the foreign public official who was paid and details of what they were paying for.

The guidelines say “taxpayers will generally use the same techniques they use to conceal income” to conceal bribes.

“Tax officers will therefore have to lok for evidence of bribery in the same way as they look for evidence of evasion.”

Auditors should watch out for, among other things: payments made through fictitious businesses; invoicing inflated amounts; and fictitious employees.

Which is all fine, as long as we don’t end up with the problem American companies now face of not being able to buy a foreign official lunch.

Paying bribes is about culture, rather than book-keeping.

Peter Fray

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