Birdseye and Australian Securities and Investments Commission
[2006] AATA 752
•5 September 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 752
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2004/421
GENERAL ADMINISTRATIVE DIVISION ) Re NICHOLAS GUY BIRDSEYE Applicant
And
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Respondent
DECISION
Tribunal Senior Member R W Dunne Date5 September 2006
PlaceAdelaide
Decision The Tribunal sets aside the decision under review and there is substituted a decision that the applicant’s application for registration as an auditor is granted.
..............................................
R W DUNNE
(Senior Member)
CATCHWORDS
CORPORATIONS – registration of auditors – application for registration by applicant previously registered as an auditor – ASIC refused application on grounds relating to lack of practical experience and capabilities – review of ASIC decision – whether applicant has appropriate practical experience and was capable of performing duties of an auditor – decision set aside.
Corporations Act 2001 (as at 30 June 2004) ss 307, 308, 309, 1280(2)
Corporations Regulations 2001 (as at 30 June 2004) Regulation 9.2.04
Re Higham (1986) 5 ACLC 352
Lofthouse v ASIC (2004) 22 ACLC 685
Re Percival and Australian Securities Commission (1993) 30 ALD 280REASONS FOR DECISION
5 September 2006 Senior Member R W Dunne 1. On 8 December 2004, the applicant (Mr Nicholas Guy Birdseye) applied for review of a decision of a delegate of the respondent (Australian Securities and Investments Commission) (“ASIC”) dated 10 November 2004. The delegate had refused Mr Birdseye’s application for registration as an auditor under s 1280(2) of the Corporations Act 2001 (“Act”).
2. At the hearing, Mr Birdseye was represented by Mr Blight of counsel and the respondent by Mr White of counsel. The documents (“T documents”) and supplementary documents (“supplementary T documents”) were admitted in evidence as exhibits R1, R2 and R3. In addition, the Tribunal admitted the following documents in evidence:
·witness statement of the applicant sworn 11 November 2005, with annexures 1-11 (exhibit A1);
·supplementary witness statement of the applicant sworn 7 April 2006, with annexures S1-S3 (exhibit A2);
·permanent information checklist for Service to Youth Council Inc to 30 June 2005 (exhibit R4);
·Explanatory Memorandum relating to the Corporations Act 1989 presented to Parliament on 12 February 1991 (exhibit R5); and
·Auditing Competency Standard for Registered Company Auditors dated 24 November 2004 (exhibit R6).
issues for the tribunal
3. The issues for the Tribunal are:
(a)whether, pursuant to s 1280(2)(b) of the Act, the applicant had such practical experience in auditing as is prescribed in Regulation 9.2.04 of the Corporations Regulations 2001 (“Regulations”);
(b)whether, pursuant to s 1280(2)(c) of the Act, the applicant is capable of performing the duties of an auditor; and
(c)whether the applicant’s application for registration as an auditor should be granted or refused under s 1280(2) of the Act.
legislation
4. The Act and the Regulations (both as at 30 June 2004) relevantly provide as follows:
Section 1280(2) of the Act
“Registration of auditors
(2)Subject to this section, where an application for registration as an auditor is made under section 1279, ASIC must grant the application and register the applicant as an auditor if:
(a)the applicant:
(i) is a member of the Institute of Chartered Accountants in Australia, CPA Australia or any other prescribed body; or
(ii) holds a degree, diploma or certificate from a prescribed university or another prescribed institution in Australia and has passed examinations in such subjects, under whatever name, as the appropriate authority of the university or other institution certifies to ASIC to represent a course of study in accountancy (including auditing) of not less than 3 years duration and in commercial law (including company law) of not less than 2 years duration; or
(iii) has other qualifications and experience that, in the opinion of ASIC, are equivalent to the qualifications mentioned in subparagraph (i) or (ii); and
(b) ASIC is satisfied that the applicant has had such practical experience in auditing as is prescribed; and
(c) ASIC is satisfied that the applicant is capable of performing the duties of an auditor and is otherwise a fit and proper person to be registered as an auditor;
but otherwise ASIC must refuse the application.”
Regulation 9.2.04 of the Regulations
“Regulation 9.2.04 Practical experience in auditing (Act s 1280 (2))
For paragraph 1280 (2) (b) of the Act, the prescribed practical experience in auditing:
(a) is:
(i)work in auditing under the direction of a registered company auditor for a period of not less than 3 years, including appraising the operations of companies and forming opinions on the matters specified in sections 307, 308 and 309 of the Act; and
(ii)at least one continuous year during the 5 years immediately before the date of the application spent supervising audits of companies; or
(b)is practical experience that in the opinion of ASIC is equivalent to the practical experience specified in paragraph (a); or
(c)is work of the kind mentioned in paragraph (a) that was done under previous laws corresponding to sections 307, 308 and 309 of the Act.”
Section 307 of the Act
“Audit
An auditor who conducts an audit of the financial report for a financial year or half-year must form an opinion about:
(a) whether the financial report is in accordance with this Act, including:
(i) section 296 or 304 (compliance with accounting standards); and
(ii) section 297 or 305 (true and fair view); and
(b) whether the auditor has been given all information, explanation and assistance necessary for the conduct of the audit; and
(c) whether the company, registered scheme or disclosing entity has kept financial records sufficient to enable a financial report to be prepared and audited; and
(d) whether the company, registered scheme or disclosing entity has kept other records and registers as required by this Act.”
Section 308 of the Act
“Auditor's report on annual financial report
(1)An auditor who audits the financial report for a financial year must report to members on whether the auditor is of the opinion that the financial report is in accordance with this Act, including:
(a) section 296 (compliance with accounting standards); and
(b) section 297 (true and fair view).
If not of that opinion, the auditor's report must say why.
(1A) An offence based on subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(2) If the auditor is of the opinion that the financial report does not comply with an accounting standard, the auditor's report must, to the extent it is practicable to do so, quantify the effect that non-compliance has on the financial report. If it is not practicable to quantify the effect fully, the report must say why.
(3) The auditor's report must describe:
(a) any defect or irregularity in the financial report; and
(b) any deficiency, failure or shortcoming in respect of the matters referred to in paragraph 307(b), (c) or (d).
(4) The report must specify the date on which it is made.”
Section 309 of the Act
“Auditor's report on half-year financial report
Audit of financial report
(1) An auditor who audits the financial report for a half-year must report to members on whether the auditor is of the opinion that the financial report is in accordance with this Act, including:
(a) section 304 (compliance with accounting standards); and
(b) section 305 (true and fair view).
If not of that opinion, the auditor's report must say why.
(2)If the auditor is of the opinion that the financial report does not comply with an accounting standard, the auditor's report must, to the extent that it is practicable to do so, quantify the effect that non-compliance has on the financial report. If it is not practicable to quantify the effect fully, the report must say why.
(3) The auditor's report must describe:
(a) any defect or irregularity in the financial report; and
(b) any deficiency, failure or shortcoming in respect of the matters referred to in paragraph 307(b), (c) or (d).
Review of financial report
(4) An auditor who reviews the financial report for a half-year must report to members on whether the auditor became aware of any matter in the course of the review that makes the auditor believe that the financial report does not comply with Division 2.
(5) A report under subsection (4) must:
(a) describe any matter referred to in subsection (4); and
(b) say why that matter makes the auditor believe that the financial report does not comply with Division 2.
Report to specify day made
(6) A report under subsection (1) or (4) must specify the date on which it is made.”
5. It was common ground that the applicant satisfied s 1280(2)(a) and the second limb of s 1280(2)(c) of the Act, namely that the applicant was a fit and proper person to be registered as an auditor. It was also common ground that s 1280(2) of the Act and Regulation 9.2.04, as in force at 30 June 2004, applied to Mr Birdseye’s application for registration as an auditor. It was conceded on behalf of the applicant that he could not meet the practical experience requirement prescribed in Regulation 9.2.04(a)(i) and (ii) (see exhibit R1, T9 at page 90).
background
6. Mr Birdseye holds a Bachelor degree in economics and is a certified practising accountant. He was employed as an account clerk with Stevens Searcy Hill and Co, Chartered Accountants from January 1977 until about February 1979. He worked in the audit section with Mr Peter Whelan and Mr John Stevens, who were audit partners of the firm. He mainly worked with Mr Whelan. From February 1979 until October 1980, he was employed by Stephen Su and Co, Chartered Accountants. Mr Su was a registered company auditor, as was his partner, Mr Keith Bishop. Mr Ernst Kirsten was an employee of Mr Su and he was also a registered company auditor.
7. In October 1980, the applicant established the practice of Nicholas Birdseye & Associates. On 30 April 1982 he was appointed as a registered company auditor by the then Companies Auditors Board, pursuant to the Companies Act 1962. With the advent of the Companies (South Australia) Code (“Code”) he became registered as an auditor under the Code on 23 January 1985. He was made bankrupt on the petition of the Deputy Commissioner of Taxation on 9 November 1998. On 3 May 2001, the Companies Auditors and Liquidators Disciplinary Board (“CALDB”) cancelled his registration as an auditor, but the cancellation was stayed by this Tribunal on 10 May 2001 pending appeals against the CALDB decision. Although he was discharged from bankruptcy on 15 January 2002, the appeals were decided adversely to the applicant. He remained registered as an auditor until 27 March 2002 when, as a result of his bankruptcy, the applicant’s registration as an auditor was cancelled.
8. In relation to the decision under review, Mr Birdseye originally applied for registration as an auditor on 7 May 2004. The respondent invited additional information and Mr Birdseye applied again for registration on 17 June 2004 and 30 June 2004. The respondent informed Mr Birdseye that the registration requirements for auditors under the Act were to change on 1 July 2004 and that any application received by 30 June 2004 would be assessed under the then existing requirements. Applications for registration lodged on or after 1 July 2004 would be assessed under the new criteria.
9. After a review of the applications, Mr Birdseye was advised that, on the information available, the respondent intended to refuse the application made on 30 June 2004 and offered him the opportunity to appear at an ASIC hearing to make submissions and to give evidence in support of the application. The hearing took place on 13 October 2004. The delegate of the respondent who considered Mr Birdseye’s application stated in his reasons:
“9.ASIC was concerned that Mr Birdseye does not have the practical experience required by section 1280(2)(b) of the Act, as prescribed by regulation 9.2.04(a) of the Corporations Regulations (‘Regulations’) and the capabilities required under section 1280(2)(c) of the Act. In particular, ASIC is concerned that Mr Birdseye may not have:
9.1 sufficient relevant experience in the past 5 years in conducting audits requiring reviews of complex accounting systems, statutory accounting disclosures, compliance with accounting standards, and forming an opinion on matters specified under sections 307, 308 and 309 of the Act;
9.2 the supervisory experience required by regulation 9.2.04(a)(ii);
9.3 practical experience that, in the opinion of ASIC, is equivalent to the supervisory auditing experience required by regulation 9.2.04(a)(ii); and
9.4 provided referee reports from eligible persons commenting on audits that he has carried out in the past 5 years.
…
47.As the Application was lodged on 30 June 2004, I have assessed the Application and additional submissions against the relevant criteria existing as at the date of the Application.
48.However, since lodgement of the Application the provisions of the Act and Regulations for registration of auditors have changed in some regards and, accordingly, I have also had regard to the changes in the law and revised ASIC policy in arriving at my decision.”
the evidence
10. Whilst with Stevens Searcy Hill and Co, the applicant spent between 70 percent and 85 percent of his time doing auditing work. His evidence was that he was engaged in audits for:
·SAFCOL;
·Independent Grocers Co-operative Limited;
·Kauri Timber Company Limited;
·Disposable Products Pty Ltd; and
·J H Evins Industries Pty Ltd.
He described the audits as “very large”, such as Independent Grocers Co-operative Limited with a turnover of $800 million, and “smaller”, such as SAFCOL with a turnover of $60 million. The audits would be supervised by the audit department but the applicant would be primarily reviewing and checking documents and accounts. In time, he moved to managing aspects of the audits and was involved in some planning. In the end, it was the audit department that was responsible for forming the audit opinions, but based upon draft accounts and the draft audit opinions prepared by the applicant. The applicant was not involved in the audits of any of these companies after February 1979. His non-company audit experience whilst with Stevens Searcy Hill and Co was with:
·Canterbury Book Depot;
·Alderman Lee Wilson and Mansfield (solicitors – auditing trust account); and
·Symons Walsh and Associates Pty Ltd (land agents – auditing trust account).
11. Whilst with Stephen Su and Co, the applicant worked on the audit of Quentron Optics Ltd for the financial years ended 30 June 1979 and 30 June 1980. This audit work involved the drafting of the audit plan, work on the accounts and the drafting of the audit reports, all done under the supervision of Mr Bishop. He said that his work at Stephen Su and Co was nothing of the calibre, in terms of experience, of that gained whilst with Stevens Searcy Hill and Co.
12. During the course of obtaining registration as an auditor under the Code, by letter dated 18 June 1984, the applicant provided details of his experience in company audits to the then Corporate Affairs Commission (exhibit R3, T40.2 at page 888). Included in the particulars were references to various audits of superannuation funds, a land broker’s trust account and a land agent’s trust account. The applicant’s evidence was that, since starting his own practice, he had been limited in terms of the audit work that he had been undertaking. However, he also gave evidence that, at the time of his letter to the Corporate Affairs Commission, his auditing work was increasing and represented about 10 percent of the work undertaken by him. For example, during the period from 1984 to 1985, he gained experience in auditing a number of Local Councils under the Local Government Act 1936.
13. During the period from 1985 to 1990, the applicant was engaged by a number of insurance companies as an auditor of wages and payroll for their workers’ compensation employers. He said that he had been involved in going into in excess of 1,000 companies and auditing their wage declarations. He said this required him to gain an understanding of the systems used by the different companies, their management policies, business practices and accounting standards. However, although the audits may have been of the accounts of the insurance companies concerned, he frankly admitted that they were special purpose audits. They were not audits under the Code. In cross-examination by Mr White, the applicant was referred to the transcript of a Corporate Affairs Commission hearing conducted on 11 December 1984 at the time he was applying for registration as an auditor under the Code (exhibit A2, annexure S1 at page 27). When asked about his skill level as an auditor at that time, the applicant said:
“Now, I’ll state now, I am not adequately endowed with the skill at the moment to audit a computer system in terms of vast amounts of data in and vast amounts of data out; a small accounting system or a small business, you know, turnover up to say five million dollars, yes, I could adequately audit that, but I couldn’t audit a computer system for a Santos.”
The applicant acknowledged that this represented a summary of his skill level as an auditor at the end of 1984. He also acknowledged that the bulk of his audits up to 1990 were insurance wage declaration audits, and he did not obtain any further significant company audits to the end of 1990.
14. From 1990 onwards, the applicant’s audit work consisted principally of the audit of the Service to Youth Council Inc (“SYC”), the audit of Leigh Warren & Dancers Pty Ltd (“Leigh Warren”) and the audit of various land agent trust accounts and superannuation funds. The SYC was an association incorporated under the Associations Incorporation Act and Leigh Warren was a proprietary limited company. According to his evidence, the SYC was the major incorporated association audited by him. In his supplementary witness statement (exhibit A2 at paragraph 37) he described the SYC as follows:
“The SYC is an organisation which has approximately 120 staff and an annual turnover of approximately $14,000,000.00. In approximately 1999, SYC bought, by public tender, the business, contracts, stock, plant and goodwill of Nastech Inc from the Liquidator of Nastech. SYC’s major activities involve assisting unemployed and unskilled persons to rejoin the workforce. Governments provide grants to SYC (and similar bodies) to facilitate this process. Nastech was such a similar body and its business was acquired by SYC. The audit of the SYC during the year in which this acquisition took place involved accounting for this acquisition including goodwill.”
15. In cross-examination, the applicant stated that he designed the audit plans for the SYC. However, it became apparent from his evidence that these plans had been developed by the large accounting firms and the professional bodies and could be adapted for use in the audit of different entities, such as public companies, mining companies, charities and incorporated associations. In the course of discussion about the audit of the SYC, the applicant was referred to his witness statement (exhibit A1 at paragraph 28) where he said:
“The audit of the SYC is complex in that it involves unusual consolidation issues which need to be carefully considered. The audit involves separate financial entities, the results of which would normally be eliminated on consolidation. However, due to the particular requirements of the SYC’s government funding arrangements, the results of those entities are not consolidated in the SYC accounts.”
16. In cross-examination, the applicant acknowledged that there were no separate financial entities appearing in the financial accounts for the SYC and that the 2005 audit occupied approximately 300 hours in total, of which approximately 70 hours was his time. In further cross-examination, it became apparent that, out of the total time spent by Nicholas Birdseye & Associates on the SYC audits, the applicant’s time was approximately 10 to 20 percent of the total.
17. In his supplementary witness statement (exhibit A2 at paragraph 32), the applicant detailed the following audits that had been undertaken by Nicholas Birdseye & Associates since 7 May 1999:
·SYC audit for the financial year ended 30 June 1999;
·SYC audit for the financial year ended 30 June 2000;
·SYC audit for the financial year ended 30 June 2001;
·SYC audit for the financial year ended 30 June 2002;
·SYC audit for the financial year ended 30 June 2003;
·Leigh Warren audit for the financial year ended 30 June 1999;
·Leigh Warren audit for the financial year ended 30 June 2000;
·Leigh Warren audit for the financial year ended 30 June 2001; and
·Leigh Warren audit for the financial year ended 30 June 2002.
18. Although he acknowledged that the Leigh Warren audit was small, it was a company audit. In relation the land agent trust account audits, the applicant acknowledged that these were generally quite simple although, in the case of one trust account, difficulties were encountered and approximately 200 hours across all staff of Nicholas Birdseye & Associates were spent on the audit. Of this, approximately 100 hours was spent by the applicant.
19. In relation to the audit of superannuation funds during the period from 1999 to 2004, the applicant detailed in his witness statements (exhibit A1 at paragraph 19 and exhibit A2 at paragraph 41) the following funds that had been audited:
Fund Approximate Approximate Hours
Value of Assets Audit Fee InvolvedJM Thompson
Super Fund $150,000.00 $1,000.00 20 hoursA Purser
Super Fund $350,000.00 $1,800.00 75 hoursR A Minns
Super Fund $200,000.00 $1,000.00 50 hoursGeological & Film
Consultants
Super Fund $200,000.00 $1,000.00 15 hours
In cross-examination by Mr White, the applicant said that the audit of superannuation funds was in many respects more onerous than company audits. Company audits used the concept of materiality, allowing for a 10 percent variation in company accounts. On the other hand, superannuation fund audits required financial statements to be more than “true and fair”, which meant that there was no allowance for any variation. Although the applicant would not accept that the superannuation funds audits were generally small and relatively simple, when Mr White referred him to the hours spent on each of the above audits, he acknowledged that the hours involved suggested that the audits were not particularly complex. He also acknowledged that the hours involved were those for all staff employed on the audits, and that between 10 and 20 percent of each total was spent by him on the audits.
20. The applicant was also engaged in other recent audits, they being:
·The Cancer and Bowel Research Trust Inc for the financial year ended 30 June 2004. This was a special purpose audit under the Charities Acts of Queensland and South Australia. This audit took Nicholas Birdseye & Associates approximately 40 hours, of which 25 hours was the applicant’s time.
·South Australian Road Runners Club Inc (as at September 2002). This was an audit under the Associations Incorporations Act and took approximately 15 hours in total, all performed by the applicant.
21. The applicant acknowledged that the amount of time personally spent by him on the various audits conducted by Nicholas Birdseye & Associates in the 5 years between 1999 and 2004 was approximately 200 hours a year and that this time was made up as follows:
·the SYC – 70 hours a year;
·Leigh Warren – 30 hours a year;
·Land Agents’ Trust Accounts – 50 to 100 hours a year;
·Superannuation Funds – 10 to 15 hours a year.
consideration
22. The Tribunal notes the common ground reached and the concessions made by the parties that are referred to in paragraph 5 of these reasons. The question for the Tribunal is whether or not it is satisfied:
(a)that the applicant has had such practical experience in auditing that is in the opinion of the Tribunal equivalent to:
(i)work in auditing under the direction of a registered company auditor for a period of not less than 3 years, including appraising the operations of companies and forming opinions on the matters specified in ss 307, 308 and 309 of the Act; and
(ii)at least one continuous year during the 5 years immediately before the applicant’s date of application for registration spent supervising audits of companies; or
(b)that the applicant has had such practical experience in auditing that is work of the kind mentioned in (i) and (ii) above that was done under previous laws corresponding to ss 307, 308 and 309 of the Act; and
(c) that the applicant is capable of performing the duties of an auditor.
23. The Tribunal is satisfied that the cancellation of the applicant’s registration as an auditor, by reason of his bankruptcy, in no way affected his fitness or performance as an auditor and does not impact upon the Tribunal’s consideration of the decision under review.
24. There was some discussion between opposing counsel as to whether the provisions of s 1280(2) of the Act, and in particular s 1280(2)(b) and s 1280(2)(c), involved the exercise of a discretion on the part of ASIC and, hence, the Tribunal. It appears to the Tribunal that the presence of the expression “ASIC is satisfied” in ss 1280(2)(b) and (c) and the expression “in the opinion of ASIC” in Regulation 9.2.04(b) suggests the use of a discretion. This view is re-enforced by Senior Master Lee QC in Re Higham (1986) 5 ACLC 352 where, in referring to the predecessors to ss 1280(2)(b) and (c) and Regulation 9.2.04(b), he said (at page 370):
“It should then be noted that in sec. 18(2)(b) and (c), the requirement is that ‘the Commission is satisfied’ that the applicant has complied with the respective subparagraphs. It might be thought that as with sec. 18(2)(a)(i) and (ii), a more stringent prescription would have applied if those words (‘the Commission is satisfied’) were omitted. Whether or not the presence of these words indicates a general discretion in the Commission, reg. 23 itself and particularly para. (b) thereof requires the Commission to form an opinion as to whether or not the practical experience acquired by an applicant is equivalent to the practical experience required in para. (a). It is true that by virtue of sec. 18(2) the Commission must in the end come to an opinion concerning all of the matters required by the subsection, but, as with sec. 18(2)(a)(iii), the Commission is empowered to form an opinion as to whether the practical experience in fact acquired by an applicant is equivalent to the practical experience required in para. (a) of reg. 23. These provisions appear to give some scope for the proper exercise of a discretion depending on the facts of the case.”
However, although the exercise of a discretion may involve ASIC and the Tribunal reaching certain conclusions about an applicant’s practical experience, capability, fitness and equivalency, ultimately ASIC and the Tribunal must decide whether to grant or refuse an application, and there is no discretion in reaching this ultimate decision.
Does the applicant have such practical experience in auditing as is prescribed in Regulation 9.2.04(b) when read with Regulation 9.2.04(a)(i)?
25. Mr Birdseye was employed by Stevens Searcy Hill and Co and by Stephen Su and Co, working in auditing under the direction of registered company auditors (Mr Whelan, Mr Su and Mr Bishop), between January 1977 and October 1980. Then, in the period after 30 April 1982, when he was appointed as a registered company auditor, he was involved for 20 years in numerous audits of companies, incorporated associations, superannuation funds and trust accounts.
26. In opining whether the applicant has practical experience in working in auditing under the direction of a registered company auditor for not less than 3 years, the work equivalency must include appraising the operations of companies and forming opinions on the matters specified in ss 307, 308 and 309 of the Act. Mr Blight submitted that, in analysing Regulation 9.2.04(b), the use of the word “equivalent” expanded the review which ASIC and the Tribunal must conduct to not only the equivalent type of work, but also to entities that were equivalent to companies. Further, he submitted that the supervision of the audits of private superannuation funds, combined with the SYC and the Leigh Warren audits, was auditing supervisory work, which included the appraising of operations and forming the opinions required of a company auditor in ss 307, 308 and 309 of the Act.
27. The Tribunal is satisfied, on the evidence before it, that the applicant has such practical experience in auditing that in its opinion is equivalent to the practical experience specified in Regulation 9.2.04(a)(i). Although Mr White did not appear to concede this point, the concession seems to have been contemplated by the respondent in paragraph 24 of its statement of facts, issues and contentions (“SFIC”).
Does the applicant have such practical experience in auditing as is prescribed in Regulation 9.2.04(b) when read with Regulation 9.2.04(a)(ii)?
28. On the issue of practical experience that is equivalent to at least one continuous year during the 5 preceding years immediately before the date of the applicant’s application spent supervising audits of companies, the Tribunal is of the view that the applicant’s audit work with Leigh Warren and the SYC goes towards satisfying this requirement. Specifically, the applicant was responsible for the supervision of the following audits:
(a) in the period 1995 to 2002, the audits of Leigh Warren; and
(b) in the period 1990 to 2005, the audits of the SYC.
The Tribunal accepts Mr Blight’s submission that, in relation to the 2004 and 2005 audits of the SYC, although Mr Birdseye’s registration had been cancelled, he supervised the audits and that supervision may be taken into account in satisfying the applicant’s equivalency for the purposes of Regulation 9.2.04(a)(ii). On this, Senior Master Lee QC in Re Higham (supra) said (at page 361):
“It would seem to be unduly restrictive having regard to the powers of the Commission…if the Commission were compelled to use only experience occurring before the date of the initial application. Also, this hearing is a hearing de novo and it would be inconvenient if the appellant (and the Commission for that matter) were not entitled to rely upon evidence of facts which had occurred since the date of the application if those facts in the interests of justice bore upon the true outcome of the application on the merits.”
29. In considering further the issue of equivalency in supervising the audits of companies, Leigh Warren was a proprietary limited company, incorporated under the Act. Moreover, in relation to the audit of the SYC, the Tribunal notes the comments made by the respondent in its SFIC (at paragraph 28), where it is said:
“In the relevant five year period, the only company audit conducted by the applicant appears to be Leigh Warren & Dancers Pty Ltd (LWD). In addition, the applicant audited Service to Youth Council Incorporated (SYC). While this organisation is not a company, it is probably the equivalent of a company, notwithstanding it does not have to be audited by a registered company auditor.”
It seems that, although the respondent considered that the audit of the SYC was probably the equivalent of a company audit, it would not accept that the audits of payrolls, trust accounts and private superannuation funds were relevant to assessing the applicant’s practical experience in auditing companies (see paragraph 27 of the respondent’s SFIC). Nevertheless, the respondent’s internal policy (“IR Auditors”), applicable to Mr Birdseye’s application for registration, contemplates that certain non-company auditing or other practical experience can be accepted as equivalent to the practical experience specified in Regulation 9.2.04(b). IR Auditors (exhibit R1, T4.1 at page 52) provides:
“Where an applicant does not meet the experience requirements of Regulation 9.2.04(a), Regulation 9.2.04(b) allows ASIC to accept non company auditing or other practical experience (eg. investigating accountants reports) which, in ASIC’s opinion, is equivalent to the practical auditing experience specified in 9.2.04(a).
In exercising its discretion under Regulation 9.2.04(b), ASIC needs to be satisfied that non company audits demand similar skill and judgement to a company audit. This will require you to demonstrate that the entities concerned have complex accounting systems, statutory accounting disclosures and comply with accounting standards.
In the circumstances where your experience consists mainly of non company audits, you must still be able to demonstrate that you have had experience in appraising the operations of entities and forming opinions on the matters specified in sections 307, 308 and 309 of the Corporations Act 2001. Simply having knowledge of the disclosure requirements in the Act is not sufficient.”
30. Mr Blight submitted that the applicant’s work in auditing wages payroll declarations of numerous companies was relevant. On this point, although referring to the predecessor to Regulation 9.2.04(a)(i), Senior Master Lee QC observed in Re Higham (supra) at page 372:
“… It seems to me that the accent on the different legal obligations of an auditor and an investigating accountant has to some extent obscured a proper comparison of the work performed by each in the context of the application, not only as to whether this (and other audit-type work) can be regarded as ‘work in auditing’, but also as to whether it might properly be regarded as the equivalent of that work.
The evidence has persuaded me that in truth, much of the work performed by Mr Higham not only in relation to investigating accountants’ reports, but in other areas, falls within the scope of ‘work in auditing’ within the meaning of reg. 23(a)(i). It is also clear that his work has included the appraisal of companies’ operations and formation of opinions on the matters there set out and on various other matters. Indeed, in its narrowest sense, work in relation to Queensland Trading and Holding must also fall within the scope of reg. 23(a)(i) which has itself spread over a period of not less than three years …
As to reg.23(a)(ii), this is the area of most difficulty….the regulation does not require that the appellant should be engaged in nothing but the supervision of audits full-time throughout the whole of one continuous yearly period in the preceding five years. He has in fact been engaged in supervision the audit of Queensland Trading and Holding Company for three years up to the date of his application apart from his work with that company in 1986 and apart from other supervisory work he has performed. It seems that on the particular facts of this case the applicant probably complies with reg. 23(a)(ii).”
Applying the reasoning of Senior Master Lee QC, it would seem appropriate for the applicant’s work in auditing wages payroll declarations of companies to be taken into account in considering whether he satisfies the requirements of Regulation 9.2.04(a)(ii) and thus Regulation 9.2.04(b).
31. It was Mr White’s submission that, in considering Regulation 9.2.04(b), the applicant must have practical experience that in the opinion of ASIC (and hence the Tribunal) was equivalent to the practical experience specified in Regulation 9.2.04(a). It was not practical experience at large, but practical experience equivalent to that specified in paragraphs (i) and (ii) of Regulation 9.2.04(a). Mr White referred to the discussion of the expression “equivalent” in Re Higham (supra). In considering submissions on behalf of the National Companies and Securities Commission, Senior Master Lee QC said (at page 368):
“Senior counsel for the Commission submitted that the expression ‘equivalent’ in reg. 23(b) meant ‘equal in value’ as defined in the Shorter Oxford Dictionary. The full text of that definition is as follows:
‘Equal in value, power, efficacy or import; having equal or corresponding significance … Equal in combining value; having the same degree of quantivalence.’
He submitted that the experience envisaged by reg. 23(b) had to be the same actual type of experience referred to in reg. 23(a) and that the equivalent experience could be made up of a combination of varying periods, e.g. by supervision of audits conducted over several periods all of which might be the equivalent of ‘one continuous year’. It seems to me that this argument is not valid for two reasons. The first is that it would be contrary to his primary submission that it is essential that there would be involvement for one continuous year as a condition precedent to compliance with reg. 23(a)(ii). Secondly it would seem to leave little scope for a separate and independent operation for reg. 23(b) having regard to the wide powers conferred upon the Commission and the knowledge which it has or has access to and as recognised by the Code and by the regulations, as well as to the broad expression ‘such practical experience as in the opinion of the Commission’.”
32. In referring to Re Higham, the Tribunal accepts Mr White’s submission that the practical experience in Regulation 9.2.04(b) must be analogous to, but obviously not the same as the experience described in, Regulation 9.2.04(a). However, he went on to argue that, because of the temporal references to ss 307, 308 and 309 of the Act (in Regulation 9.2.04(a)(i)) and to the 5 year requirement (in Regulation 9.2.04(a)(ii)), Regulation 9.2.04(b) expanded the breadth of the practical experience that may be considered, but did not extend the period of consideration. Regulation 9.2.04(b) expanded the range of work that may be considered, but within the time frames referred to or inherent in Regulation 9.2.04(a)(i) and (ii).
33. Like Senior Master Lee QC in Re Higham, the Tribunal found the consideration of the provisions of Regulation 9.2.04(b) in the present case of most difficulty. Nevertheless, the Tribunal is inclined to the view that, notwithstanding the temporal references in Regulation 9.2.04(a), Regulation 9.2.04(b) should not interpreted in a way that narrows the period of consideration of practical experience. Regulation 9.2.04(b) allows for practical experience involving not only an expanded range of work to be considered, but also time frames that are not restricted to the temporal references in Regulation 9.2.04(a)(i) and (ii).
34. On the balance of the evidence, the Tribunal is satisfied that the applicant has such practical experience in auditing that in its opinion is equivalent to the practical experience specified in Regulation 9.2.04(a)(ii). It follows that the applicant complies with Regulation 9.2.04(b), which enables s 1280(2)(b) to be satisfied.
Does the applicant have such practical experience in auditing as is prescribed in Regulation 9.2.04(c)?
35. It was Mr Blight’s initial submission that, if the applicant did not satisfy Regulation 9.2.04(b), he would satisfy the requirements of Regulation 9.2.04(c) in that he performed work of the kind mentioned in Regulation 9.2.04(a) that was done under previous laws corresponding to ss 307, 308 and 309 of the Act. The Tribunal observes that the previous laws corresponding to ss 307, 308 and 309 were contained in s 285 of the Companies Act 1981, s 332 of the Companies Act 1989 and ss 331A to 331F of the Corporations Act 2001.
36. In refusing to grant Mr Birdseye’s application for registration, the respondent’s delegate does not appear to have considered the application of Regulation 9.2.04(c). The Tribunal notes that Regulation 9.2.04(c) does not require that the work involved be confined to the periods and the time referred to in Regulation 9.2.04(a), that is, the period of 3 years and one continuous year in 5 years. In these circumstances, the period that is allowed in Mr Birdseye’s case is from 30 April 1982, which is the date he was appointed as a registered company auditor by the Companies Auditors Board, until 30 June 2001, which is the date immediately before the coming into operation of ss 307, 308 and 309 of the Act. For the applicant, it thus becomes a matter of his practical experience in auditing, that being:
(a)work in auditing under the direction of a registered company auditor, including appraising the operations of companies and forming opinions on the matters specified in ss 307, 308 and 309 of the Act; and
(b) supervising audits of companies,
all of which must be considered under previous laws corresponding to ss 307, 308 and 309 of the Act.
37. Mr White submitted that Regulation 9.2.04(c) must be tied to Regulation 9.2.04(a). He argued that it did not permit consideration of any other type of work. In particular, it did not import the equivalence provisions of Regulation 9.2.04(b). The only difference between Regulation 9.2.04(a) and Regulation 9.2.04(c) was that the former was tied to “the matters specified in ss 307, 308 and 309 of the Act”, and the latter allows consideration of work “… that was done under previous laws corresponding to ss 307, 308 and 309 of the Act”. Mr White put to the Tribunal that Regulation 9.2.04(c) had two possible operations:
·it may be transitional – without it, an applicant could not qualify in the first 5 years after the commencement of the operation of the Regulation;
·alternatively, it may be viewed as more temporal – it could extend the period under consideration beyond that of Regulation 9.2.04(a).
38. In support of his submission that Regulation 9.2.04(c) was transitional, Mr White referred the Tribunal to the Explanatory Memorandum that was introduced into the Parliament at the time of the introduction of Regulation 9.2.04 (exhibit R5). In referring specifically to the new Regulation, the Explanatory Memorandum notes that:
“This reg is based on CR reg 23.”
Mr White argued that Regulation 9.2.04(b) extended the breadth of the work within the timeframe referred to in Regulation 9.2.04(a), whereas Regulation 9.2.04(c) extended the timeframe, but not the breadth of the work within which experience could be considered. Then, even if Regulation 9.2.04(c) extended the timeframe back beyond 5 years, a continuous year during 5 years was still required and equivalence could not be imported into such a criterion. Moreover, the expression “work of the kind” did not mean precisely the same, it meant work of the kind that was done under previous sections of the Act with equivalent provisions to those contained in ss 307, 308 and 309. In summing up, Mr White submitted that:
“Now we are left with a degree of uncertainty although it will be my submission that on any measure, it is quite clear that, in my submission that paragraph C can only be interpreted by reference to paragraph A and that Mr Birdseye must meet the criteria of paragraph A albeit he is free to refer to previous sections of the word [sic] under previous sections which is equivalence [sic] and regrettably he will fall, in my submission, in exactly the same hurdle as he falls in paragraph A.” (Transcript, 11 April 2006 at page 11)
39. Although the previous Regulation 23 did not include a paragraph (c) similar to Regulation 9.2.04(c), the Tribunal does not accept that this omission suggests that Regulation 9.2.04(c) was intended as transitional. In the Tribunal’s view, Regulation 9.2.04(c) does not (and is not intended to) dilute the requirements of Regulation 9.2.04(a) or Regulation 9.2.04(b). Regulation 9.2.04(c) refers to “work of the kind” mentioned in Regulation 9.2.04(a) done under previous laws corresponding to ss 307, 308 and 309 of the Act. This reference to “work of the kind” must mean that Regulation 9.2.04(c) allows for consideration of any work which is of the same kind as that done under sections of the Act corresponding to ss 307, 308 and 309.
40. Furthermore, it cannot be that the expression “work of the kind” in Regulation 9.2.04(c) was intended to be restricted by the time periods referred to in Regulation 9.2.04(a). This is apparent from a reading of Regulation 9.2.01, which came into effect on 9 July 2004 to effectively replace Regulation 9.2.04. Paragraph (c) of Regulation 9.2.01 reads:
“(c)work of the kind and duration mentioned in paragraph (a) that was done under previous laws corresponding to sections 307, 308 and 309 of the Act.” (underlining inserted)
It seems clear that the addition of the words “and duration” in Regulation 9.2.01 is intended to indicate that the previous Regulation 9.2.04(c) should not be interpreted with any temporal limitation in mind. Moreover, if Regulation 9.2.04(c) had been intended as a transitional provision, arguably, there would be (or there would have been) some suggestion of its repeal as soon as ss 307, 308 and 309 had been in place for 5 years.
41. In considering the applicant’s compliance with Regulation 9.2.04(c) and as has already been said, the Tribunal must be concerned with the period from 30 April 1982, when he was first appointed as a registered company auditor, until 30 June 2001, immediately before ss 307, 308 and 309 came into operation. In relation to work (or work of the kind) in auditing under the direction of a registered company auditor, including appraising the operations of companies and forming opinions on the matters specified in ss 307, 308 and 309 of the Act, the Tribunal is of the view that this experience has been gained by the applicant through working under the direction of registered company auditors whilst he was employed with Stevens Searcy Hill and Co and with Stephen Su and Co between January 1977 until October 1980. In this regard, the Tribunal notes again the concession that seems to have been contemplated in paragraph 24 of the respondent’s SFIC (see paragraph 27 of these reasons). As to work (or work of the kind) supervising the audits of companies, the Tribunal is of the view that this experience has been gained by the applicant’s supervision of the audits of the SYC, acknowledged by the respondent to be the equivalent of a company (see paragraph 29 of these reasons) and Leigh Warren. In addition, it seems to the Tribunal that the audits by the applicant of payrolls, trust accounts and superannuation funds, including those during the period 1985 to 1990, are also relevant and should be taken into consideration (see the reference to the extract from IR Auditors in paragraph 29 of these reasons and to the observations of Senior Master Lee QC in Re Higham (supra) in paragraph 30 of these reasons).
42. Mr White made the point that the special purpose audits performed by the applicant between 1985 and 1990 were not company audits, but bore some similarity to company audits. However, he said that similarity was not equivalent for the requirements of Regulation 9.2.04(b). In this regard, the observations of Senior Master Lee QC in Re Higham (supra), referred to in paragraph 30 of these reasons, suggest otherwise.
43. Again, on the evidence before it, the Tribunal is satisfied that the applicant has such practical experience in auditing that is work of the kind mentioned in Regulation 9.2.04(a) done under previous laws corresponding to ss 307, 308 and 309 of the Act. It follows that the applicant complies with Regulation 9.2.04(c), which again enables s 1280(2)(b) to be satisfied.
Is the applicant capable of performing the duties of an auditor?
44. In relation to the application of s 1280(2)(c) of the Act and whether the applicant is capable of performing the duties of an auditor, it is clear that there is a fundamental difference between the focus of s 1280(2)(b) and that of s 1280(2)(c). The focus of the former is practical experience and the latter is capability. The Tribunal accepts the submission of Mr Blight that the requirement in s 1280(2)(c) involves consideration of the duties of an auditor, not only by reference to experience, but also by having regard to other characteristics. In this regard, although the case involved an application for registration as a liquidator pursuant to s 1282(2) of the Act, where the criteria are largely the same as those in s 1280(2), the observations made by Deputy President B J McMahon in Re Percival and Australian Securities Commission (1993) 30 ALD 280 are apposite. At page 289, the Deputy President said:
“46. I consider that the guidelines should not be literally applied so as to restrict consideration to be given to Mr Percival’s experience to the 5-year period described by the relevant sub-paragraph. His previous general experience is as wide as one could reasonably require. It is true that his experience has not been particularly wide in recent years. Nevertheless there is no reason to doubt that his background, combined with his continuing education in the field, qualify him as an applicant sufficiently experienced in the winding up of bodies corporate to be considered for registration as a liquidator.
47. The same considerations lead me to the conclusion that he is capable of performing the duties of a liquidator as required by s 1282(2)(c) of the Law. …”
45. In Re Percival, the applicant had been de-registered for various reasons and his practical experience had diminished in the years leading up to his application for re-registration because of ill-health and other personal problems. In the present case, the respondent’s delegate, in considering the application for re-registration, gave no (or little) weight to the applicant’s past registration and experience. In the delegate’s reasons (exhibit R1, T2 at page 36) he said:
“103. Whether Mr Birdseye was previously registered as an auditor is not a consideration in this matter. I am required to assess whether Mr Birdseye has current experience (over the past 3 to 5 years) that would qualify him to be registered. In particular I have concerns that Mr Birdseye’s experience in recent years is not of sufficient quantity, range and complexity for me to be satisfied that he has the capabilities, required under section 1280(2)(c) of the Act, of performing the duties of an auditor.” (underlining added)
46. As the delegate made clear in his reasons, ASIC (and the Tribunal) must be satisfied that the applicant is capable of performing the duties of an auditor. However, there are no references in s 1280(2)(c) to “experience in recent years” which is not of “sufficient quantity, range and complexity” for ASIC (and the Tribunal) to be satisfied that the applicant was capable of performing the duties of an auditor. Similar references to required experience appear in IR Auditors where, it is said:
“In assessing your experience against paragraph 1280(2)(c) of the Act consideration is given to the number of audits in which you have been involved, the size of the audits and the complex issues you have addressed. It is therefore important that you include details of all your company audits and clearly demonstrate that you have had sufficient exposure to a wide range of auditing problems.”
47. In focussing on the applicant’s range and complexity experience, in particular, his recent experience, the applicant’s previous 20 years’ experience has not been considered. In ignoring his previous experience, the applicant’s application for re-registration has been considered in the same way as a first-time applicant for registration which, it seems to the Tribunal, is the class of applicant to which IR Auditors, is directed. If s 1280(2)(c) is interpreted in a way that only recent experience is relevant and previous experience is disregarded, it would render the provision otiose. By extension, recent practical experience in carrying out significant audits would be the only applicable criteria in the exercise of the discretion in s 1280(2)(c). In the Tribunal’s view, accepting Mr Blight’s submission, there must be scope for the operation of s 1280(2)(c) which does not render its operation to be, in practical terms, identical to that of s 1280(2)(b).
48. The ASIC approach and the comments in IR Auditors both seem ill-suited to an applicant in Mr Birdseye’s position. Deputy President BJ McMahon addressed the same issue in Re Percival (supra) where, at page 288, he said:
“44.In my view this is not an appropriate case in which the guidelines should be applied. Firstly, they were at the time of a tentative nature and have since been supplanted by guidelines which have undergone some external scrutiny. They are not Ministerial guidelines, which have been laid before Parliament and have run the gauntlet of a Senate Committee. The guidelines that have been applied to Mr Percival were interim instructions to officers of the Commission following its establishment. I do not criticise the delegate for following these guidelines. Indeed she no doubt felt obliged to apply them. Nevertheless I am empowered to take a wider view of the criterion that should be applied in considering the question of experience.
45.The second and more important reason for not considering the guidelines as appropriate for Mr Percival's case, lies in the wording of the guidelines themselves. They are evidently intended to assist officers in evaluating applications from persons who have not previously been registered as liquidators. Some of the requirements are so inappropriate to Mr Percival that compliance was conceded at the outset. The guidelines indicate to me a code intended to assist in the examination of qualifications of persons entering upon a career in insolvency administration for the first time. …”
49. It was Mr Blight’s submission that, if the Tribunal is satisfied that the applicant meets the practical experience requirement in s 1280(2)(b), given his particular circumstances and the fact that he had been a registered auditor for some 20 years, the applicant will also satisfy the requirements of s 1280(2)(c).
50. Both the respondent’s delegate and Mr White went to particular lengths to stress the importance of ASIC Policy Statements in considering the applicant’s application for registration. In his report (exhibit R1, T2 at pages 8-11), the delegate made numerous references to ASIC Policy Statement 180 (“PS 180”), which had been issued following the amendments to s 1280(2) and with the introduction of the new Regulation 9.2.01 as from 9 July 2004, and to ASIC Information Release 2430. Both these ASIC statements related to standards that applied to the period after the applicant had made his application for registration. The relevance and importance of Policy Statements has been considered by Tribunals in the past. In Lofthouse v ASIC (2004) 22 ACLC 685, which was an application for registration as an official liquidator, Deputy President S A Forgie and Member E Fice had to consider ASIC’s Policy Statement 24. At paragraphs 65, 66 and 70 of their reasons, Deputy President Forgie and Member Fice said:
“65. While acknowledging the importance of policy, Smithers J in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 (Bowen CJ, Smithers and Deane JJ) said:
‘In the performance of the Tribunal's function it is essential that a policy adopted by an administrator should be under review to the same extent as his evaluation of relevant matters and his general process of reasoning, not for the purpose of deciding whether it was reasonable for the administrator to make the decision he did, but for the purpose of deciding whether, by the objective standard of good government it was the right decision to make.’ (page 80)
…
66. ASIC, which has formulated Policy Statement 24, is the body that, among others, is charged with various functions and powers under the Act in relation to matters relating to corporations and the provision of financial services as well as advisory and other functions and powers under the Australian Securities and Investments Commission Act 2001. While ASIC has formulated Policy Statement 24 to guide it in exercising its powers, it cannot be said to be policy formulated at the Ministerial level of government and there is no suggestion that it has been scrutinised by Parliament. Despite that, it is policy that has been formulated at a very senior level. It follows that there would need to be very sound reasons if it is not to be applied in this case. Those very sound reasons would have to approach something close to the cogent reasons that would have to be shown were ministerial policy or policy exposed to parliamentary scrutiny not to be followed in a particular case (Re Drake (No. 2) at page 645). Among the cogent reasons that could be advanced would be a reason that the policy is not consistent with the Act.”
“70. When ASIC's criteria for registration are examined, it is seen that the focus is entirely upon the applicant's experience in insolvency administrations (PS 24.7). The criteria do not stray to include other work that may be performed only by an official liquidator and in that regard we have in mind windings up under Part 5.4A of the Act. …”
51. Mr White submitted that, at the time of Mr Birdseye’s application for re-registration, there was no relevant Policy Statement issued by ASIC. IR Auditors was an information release that had no special authority. He referred to PS 180, but frankly admitted that the Policy Statement was before the Tribunal as a statement of ASIC’s current requirements for registration of an auditor and was produced only as evidence and not to show what tests had to be applied.
52. Mr White referred to the decisions in Lofthouse (supra), Re Percival (supra) and Re Higham (supra). He distinguished Lofthouse. That case concerned a registered company liquidator, where the requirements of the legislation were not as specific as in the Act. He distinguished Re Percival on the basis that there were no statutory criteria and the facts were simply not comparable. He distinguished Re Higham, which was a case of a very highly qualified person who did not quite meet the statutory criteria. Mr Higham had a high level of current experience, but was not an auditor. Again, Mr White submitted that the applicant’s case was simply not comparable.
53. Mr White submitted that the ASIC decision itself on the applicant’s application was irrelevant and, strictly speaking, not right. However, the Tribunal was able and was required to have regard to the decision and to the delegate’s reasons. As was said by Senior Master Lee QC in re Higham (supra) at page 354:
“I was informed by Mr Kirk of counsel who appeared for the appellant that a considerable body of additional material was placed before me which was not before the Commission, a course which was not objected to except in certain respects as to weight and relevance. This is appropriate because the court hears and determines the appeal de novo on the evidence before it: Re Kornblums Furnishings Ltd.; Blair v. Wage (supra). I have accordingly proceeded to hear the matter de novo but have nevertheless carefully considered the reasons for the Commission’s refusal, prepared on the information and evidence then before it, having regard to the powers conferred by sec. 537 of the Code.”
54. Although Mr White suggested that there had been some discounting or correcting of his evidence by the applicant, the Tribunal accepts that, with the passage of time, there may be differences between time estimates. Mr Birdseye did his best, and in a frank and open manner, to correct the statements contained in his original witness statement with his oral evidence and the evidence in his supplementary witness statement.
55. Finally, in relation generally to s 1280(2)(c), the approach of the respondent, as put to the Tribunal by Mr White, focused on the experience of Mr Birdseye and whether it was current. Mr White submitted that the section imposed a separate discrete requirement of “going forward” capability, and the applicant simply did not have this capability. However, the evidence of Mr Birdseye was much to the effect that he did have a full understanding of the role and duties and obligations of a registered auditor and this evidence, apart from what were largely minor issues, was not seriously challenged in cross-examination. It was Mr Blight’s submission that, if the Tribunal was satisfied that the applicant met the practical experience requirement in s 1280(2)(b), given his particular circumstances and the fact that he had been a registered auditor for some 20 years, the applicant would also satisfy the requirements of s 1280(2)(c).
56. The Tribunal is satisfied that the applicant is capable of performing the duties of an auditor and thus complies with s 1280(2)(c) of the Act.
summary and conclusion
57. Having regard to the analysis above and for the reasons given, the Tribunal is satisfied that the applicant complies with all the provisions of s 1280(2) of the Act. Accordingly, the application must be granted.
decision
58. The decision under review is set aside and there is substituted a decision that the applicant’s application for registration as an auditor is granted.
I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
Signed: .....................................................................................
AssociateDates of Hearing 10/11 April 2006
Date of Decision 5 September 2006
Counsel for the Applicant Mr D Blight
Solicitor for the Applicant Iles Selley Lawyers
Counsel for the Respondent Mr J White
Solicitor for the Respondent ASIC
1
0
0