Fearon and Australian Prudential Regulation Authority

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 918

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   A2005/316

GENEERAL ADMINISTRATIVE DIVISION		)
Re		CHRISTOPHER FEARON

Applicant

And AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY

Respondent

DECISION

Tribunal J.W. Constance, Senior Member

Date30 October 2006

PlaceCanberra

Decision

1)    The decision of the Australian Prudential Regulation Authority made 28 November 2005 confirming the disqualification of Christopher Fearon under subsections 120A(1) and (2) of the Superannuation Industry (Supervision) Act 1993 is affirmed.

2) The decision of the Australian Prudential Regulation Authority made 8 December 2005 confirming the disqualification of Christopher Fearon under subsection 131(1) of the Superannuation Industry (Supervision) Act 1993 is affirmed.

..............................................        

J.W. Constance, Senior Member

CATCHWORDS

CORPORATIONS – Banning order – Applicant disqualified as trustee and auditor of superannuation entity – Whether Tribunal should accept enforceable undertaking – Failure to meet professional standards – Protection of integrity of superannuation system.

Superannuation Industry (Supervision) Act 1933 (Cth) ss 120A, 131

Goodman v Australian Securities and Investments Commission [2004] FCA 1000

Kamah v Australian Prudential Regulation Authority (2005) 147 FCR 516; [2005] FCAFC 248  

Re Slee and Australian Prudential Regulation Authority [2006] AATA 206

Re Preuss and Australian Prudential Regulation Authority (2005) 87 ALD 629; [2005] AATA 748

Rich and Another v Australian Securities and Investments Commission (2004) 220 CLR 129; [2004] HCA 42

REASONS FOR DECISION

30 October 2006 J.W. Constance, Senior Member             

INTRODUCTION

1.      Mr Fearon has practised as a Chartered Accountant in Canberra since 1981.

2.      He is seeking a review of two decisions made by the Australian Prudential Regulation Authority under the Superannuation Industry (Supervision) Act 1933 (Cth).  A decision made on 28 November 2005 disqualifies Mr Fearon from being a trustee, investment manager or custodian of a regulated superannuation entity or a responsible officer of a body corporate that is a trustee, investment manager or custodian of a regulated superannuation entity. A decision of 8 December 2005 disqualifies Mr Fearon from being an approved auditor of the purposes of the Act.

3.      For the reasons which follow I have decided that both decisions should be affirmed.

EVIDENCE AND FINDINGS OF FACT

4.      Unless otherwise stated the following findings of fact are made on the basis of the evidence of Mr Fearon. I am satisfied of these facts on the balance of probabilities.

5.      Mr Fearon graduated with a Bachelor of Arts in Accounting from the Canberra College of Advanced Education in 1980.  The following year he was admitted to the Institute of Chartered Accountants in Australia.  In 1987 Mr Fearon commenced practising as an auditor.

6.      During the late 1990s Mr Fearon started doing consultancy work in association with KLA Australia Pty Ltd, a management consulting firm. In 2001 he relocated his existing accounting practice to office space adjoining the premises of KLA Australia Pty Ltd.  This space was leased from KLA Australia Superannuation Fund, a fund associated with KLA Australia Pty Ltd.  Later that year Mr Fearon changed the name of his accounting practice to…