AUTON And AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY - [2005] AATA 32

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 32
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1953

GENERAL ADMINISTRATIVE DIVISION )

Re ROGER AUTON

Applicant

And

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY

Respondent

DECISION

Tribunal Senior Member M D Allen
Date14 January 2005
PlaceSydney

Decision
The decision under review is set aside.

............(Sgd) M D Allen..........................
Senior Member

CATCHWORDS
SUPERANNUATION – whether Applicant was a fit and proper person to be a Trustee for the purposes of the SIS Act – Respondent alleges breaches of ss 120A(1), (2) SIS Act – Respondent’s concerns regarding Applicant’s speculative derivatives trading in a previous review were satisfied and Applicant was found to be a fit and proper person – confusion with respect to whether Applicant was required to hold $5 million net tangible assets or eligible assets – Applicant cooperated with the Respondent and any errors made were genuine and did not involve a lack of prudence – decision under review set aside.
Superannuation Industry (Supervision) Act 1993 sections 26, 29, 52, 55 and 120A
Re Australian Superannuation Nominees Limited and Australian Prudential Regulation Authority [2004] AATA 388
Re QLS Superannuation Pty Ltd and Anor v Parker [2003] FCA 262
Wilkinson and Ors v Feldworth Financial Services Pty Ltd and Ors (1998) 29 ACSR 642; (1999) 17 ACLC 220
Davies v Australian Securities Commission and Anor (1995) 131 ALR 295
REASONS FOR DECISION

14 January 2005
  Senior Member M D Allen

1.      By application made the 12^th day of December 2003 the Applicant sought review of a decision by the Respondent to disqualify him from being a trustee, investment manager or custodian, or a responsible officer of a body corporate that is a trustee, investment manager or custodian, for the purposes of the Superannuation Industry (Supervision) Act 1993 (SIS Act).
2.      That decision was made on the basis that the Applicant was not a fit and proper person to be a trustee for the purposes of the SIS Act, see ss 120A (3) SIS Act and that breaches had occurred pursuant to ss 120A (1) and (2) of the said Act.
3.      Section 120A SIS Act reads inter alia:
“(1) [when Regulator may act]
The Regulator may disqualify an individual if satisfied that:
(a) the person has contravened this Act… on one or more occasions (whether before or after the commencement of this section); and
(b) the nature or seriousness of the contravention or contraventions, or the number of contraventions, provides grounds for disqualifying the individual.

(2) [responsible officers]
The Regulator may disqualify an individual who is, or was (including before the commencement of this section, a responsible officer of a trustee, investment manager or custodian (the body corporate) if satisfied that:
(a) the body corporate has contravened this Act … on one or more occasions (whether before or after the commencement of this section); and
(b) at the time of one or more of the contraventions, the individual was a responsible officer of the body corporate; and
(c) in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AUTON And AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY

Details

AGLC: AUTON And AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY [2005] AATA 32
Case: [2005] AATA 32
Decision Date: 14 January 2005

CaseChat Overview and Summary

Auton and the Australian Prudential Regulation Authority were the parties to the dispute, which was heard by the Federal Court of Australia. The central issue in this case was whether the Applicant was a fit and proper person to act as a Trustee under the Superannuation Industry (Supervision) Act 1993 (SIS Act). The Respondent had raised concerns about the Applicant’s speculative derivatives trading in a previous review, which had been resolved, and the Applicant was found to be a fit and proper person at that time. The court also had to consider the confusion surrounding whether the Applicant was required to hold $5 million in net tangible assets or eligible assets. The Applicant had cooperated with the Respondent, and any errors made were genuine and did not involve a lack of prudence.

The court examined the statutory framework for determining whether an individual is a fit and proper person to act as a Trustee under the SIS Act. It noted that the determination of being a fit and proper person was not solely based on the Applicant's net tangible assets or eligible assets, but also took into account their overall conduct, character, and competence. The court found that the Applicant had cooperated with the Respondent and that any errors made were genuine and did not involve a lack of prudence. The court was satisfied that the Applicant was a fit and proper person to act as a Trustee under the SIS Act.

Based on its findings, the court set aside the decision under review. The court held that the Respondent’s concerns regarding the Applicant’s speculative derivatives trading in a previous review had been satisfied, and the Applicant had been found to be a fit and proper person at that time. The court also found that the confusion surrounding whether the Applicant was required to hold $5 million in net tangible assets or eligible assets did not affect the Applicant's fitness to act as a Trustee. The court concluded that the decision under review was not supported by the evidence and was therefore set aside.

Orders

Orders of the court

The decision under review is set aside.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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