NHPT and Members of the Companies Auditors and Liquidators Disciplinary Board Australian Securities & Investments Commission JOINED PARTY

[2015] AATA 445

[2015] AATA  445

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/6345
Re	NHPT
APPLICANT
And	Members of the Companies Auditors and Liquidators Disciplinary Board
RESPONDENT
And	Australian Securities & Investments Commission
JOINED PARTY

DECISION

Tribunal	The Hon. Brian Tamberlin QC, Deputy President
Date	25 June 2015
Place	Sydney

The application to amend the decision in this matter pursuant to s 43AA of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act) is granted.

The Registrar under section 43AA of the Act is directed to alter the text of the decision made on 24 April 2015 in this matter by:

(a)deleting the words “from 23 December 2014” from the decision on page 1 and replacing them with “from 24 July 2015”; and

(b)deleting the words “from 23 December 2014” from paragraph 52 of the reasons for decision and replacing them with “from 24 July 2015”.

..............................[sgd].........................................

The Hon. Brian Tamberlin QC, Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – application under s 43AA – "slip rule" – whether inconsistency or obvious error – date of effect of suspension of applicant’s registration as an auditor  – effect of stay – inconsistency between intention of reasons and decision – application granted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 43AA

CASES

Re No Ship Action Group Inc and Minister for Sustainability, Environment, Water, Population and Communities [2010] AATA 789

REASONS FOR DECISION

The Hon. Brian Tamberlin QC, Deputy President

25 June 2015

1. These reasons concern an application brought by the applicant and joined party, the Australian Securities & Investments Commission (ASIC), pursuant to s 43AA of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act). Both parties seek correction of the decision made by the Tribunal in this matter on 24 April 2015, in so far as the date on which the Tribunal stated the applicant’s suspension is to take effect.

   RELEVANT LEGAL PRINCIPLES

2. Section 43AA of the Act enables the Tribunal, if satisfied that there is an obvious error in the text of the decision or in a written statement of reasons for the decision, to direct the Registrar to alter the text of the decision in accordance with the directions of the Tribunal. If the text is so altered “the altered text is taken to be the decision of the Tribunal or the reasons for the decision, as the case may be”. The section outlines examples of obvious errors to include “an obvious clerical or typographical error” or an “an inconsistency between the decision and the statement of reasons”.

3. In Re No Ship Action Group Inc and Minister for Sustainability, Environment, Water, Population and Communities [2010] AATA 789, President Downes (as he then was) considered the relevant principles relating to correction under s 43AA of the Act. His Honour states at [2]:

   Section 43AA of the Administrative Appeals Tribunal Act 1975 (Cth) is a section of the kind generally described as a slip rule, which is calculated to permit an order or decision of a court or tribunal to be corrected when there is some error in the form of the order, in the sense that it does not correctly represent the reasoning on which it is based. An obvious example of such an error is a mathematical error in calculation. There have been many occasions when orders of courts have been corrected in such circumstances…

4. I have had regard to this decision and the principles outlined by His Honour when formulating these reasons.

   EFFECT OF THE DECISION

5. In the present case, in its decision of 24 April 2015 this Tribunal affirmed a decision of the respondent “to suspend the applicant’s registration as an auditor, for a period of 12 months from 23 December 2014”. The effect of this decision was that the applicant’s suspension was to take effect from 23 December 2014.

6. As at the date of the Tribunal’s decision, the operation of the respondent’s decision had been suspended by this Tribunal pursuant to the stay granted on 22 December 2014 (which was continued until further order on 22 May 2015). As a consequence of this order, the Applicant continued to practise as an auditor. However, the substance of the Tribunals reasons for affirming the respondent’s decision was that the conduct of the applicant was sufficiently serious to warrant a 12 month suspension in order to protect the public interest. There would not be a 12 month suspension if the period of the stay were not taken into account when fixing the commencement date and this result would not follow if the suspension was retrospective to 23 December 2014 in circumstances where there has been a stay of the suspension which is still in force. The obvious intent of the reasons was that the suspension should be for a full 12 month period dating from the coming into operation of the Tribunal’s decision.

   CONCLUSION

7. Accordingly, it is appropriate that the text of the decision and reasons made in this matter should be corrected to accord with the text of the reasoning of the Tribunal given on 24 April 2015. I am satisfied that in order to do this it is necessary to correct the obvious inconsistency or error in the reasoning by altering the date on which the Tribunal’s decision to suspend is to come into operation. In the circumstances, the appropriate time, taking into account the possibility of an appeal and the provisions of s 44A of the Act, is at the expiry of 28 days from the date of this decision. Thus, the date on which the suspension of the applicant’s registration as an auditor for 12 months will come into effect will be 24 July 2015, being 29 days from the date of this decision. This will allow for the possibility of an appeal before the suspension order comes into effect.

   DECISION

8. The application to amend the decision pursuant to section 43AA of the Act is granted.

9. To give effect to this decision and for the reasons outlined above, I make the following orders:

   (a)The Registrar under section 43AA of the Act is directed to alter the text of the decision made on 24 April 2015 in this matter by:

   (i)deleting the words “from 23 December 2014” from the decision on page 1 and replacing them with “from 24 July 2015”; and

   (ii)deleting the words “from 23 December 2014” from paragraph 52 of the reasons for decision and replacing them with “from 24 July 2015”.

   CONSEQUENTIAL ORDERS

10. As a consequence of the above orders, there are several related matters with respect to confidentiality and the revocation of the stay in this matter which it is also appropriate to address in these reasons. The parties are in agreement in relation to these matters and I make the following orders by consent:

    (a)The stay granted pursuant to s 41(2) of the Act on 22 December 2014 and continued until further order on 22 May 2015 is to continue until 23 July 2015 (being 28 days after the date of this decision) unless an appeal is lodged, in which case it is to continue until the appeal is determined, unless the Tribunal, the Federal Court of Australia or the Federal Circuit Court of Australia otherwise orders.

    (b)On and from 23 July 2015, the order made by the Tribunal pursuant to s 35(2) of the Act on 14 January 2015 is revoked and the pseudonym ‘NHPT’ is to be replaced with the applicant’s name, unless an appeal is lodged, in which case the order is to continue until the appeal is determined, unless the Tribunal otherwise orders. 

    (c)The parties are directed to notify the Tribunal of any appeal lodged in relation to these proceedings by 23 July 2015.

I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of The Hon. Brian Tamberlin QC, Deputy President

..........................[sgd]..............................................

Associate

Dated 25 June 2015

Date of hearing	15 June 2015
Date final submissions received	18 June 2015
Counsel for the Applicant	Mr T Castle
Solicitors for the Applicant	Sophie Grace Legal Pty Ltd
Solicitors for the Respondent	Australian Government Solicitor
Counsel for the Joined Party	Mr A Conolly
Solicitors for the Joined Party	In house