Pantzer and Companies Auditors & Liquidators Disciplinary Board and Australian Securities and Investments Commission

[2000] AATA 771

DECISION AND REASONS FOR DECISION [2000] AATA 771

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N1999/1886

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      WARREN PANTZER        
  Applicant
           And    COMPANIES AUDITORS & LIQUIDATORS DISCIPLINARY BOARD      
  Respondent
           And    AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
  Joined Party

DECISION

Tribunal       Mr B.J. McMahon (Deputy President)    

Date01 September 2000

PlaceSydney

Decision      The decision under review is affirmed. 
  ..............................................
  BJ McMahon
  Deputy President
CATCHWORDS
CORPORATIONS – Companies Auditors and Liquidators Disciplinary Board – suspension of registration of liquidator – failure to carry out or perform adequately or properly the duties or functions required to be carried out by a registered liquidator – consent order made – applicant gave certain undertakings – breach of undertaking – obligations not complied with – suspension.
Corporations Law (Cth) – ss 232(4), 435C, 438A, 438D, 439A, 444A, 450B, 450E, 1292(2),(9),(10), 1293(3).

REASONS FOR DECISION

01 September 2000          Mr B.J. McMahon (Deputy President)                

1. This is an application to review a decision of the above Board, given pursuant to subsection 1292(9) of the Corporation Law.

2. On the application of the Commission (ASIC) an application was made to the Board pursuant to subsection 1292(2)(d)(ii) of the Law alleging that the applicant had failed to carry out or perform adequately and properly the duties or functions required by an Australian law to be carried out or performed by a registered liquidator in relation to the administration of a company named Gartrell Fruit Trading Pty Limited (GFT). Particulars of the contentions made by ASIC were as follows:

   "(a)by failing to adequately and properly investigate GFT's business, property, affairs and financial circumstances as required under s.438A(a), and/or failing to report to the creditors pursuant to s.439A(4)(a) of the Law, and further and in the alternative by failing to exercise due care and diligence as required by s.232(4) of the Law in carrying out that investigation and reporting to creditors;

   (b)by recommending the DCA proposal to creditors for acceptance at the meeting held on 6 January 1998 and at the adjourned meetings held on 27 January and 3 February, 1998, and further and in the alternative by failing to exercise due care and diligence as required by s.232(4) of the Law in recommending the DCA proposals to creditors;

   (c)by failing to prepare a deed instrument under s.444A(3) of the Law that accurately set out the terms of the DCA approved by creditors in that, under the approved proposal, the administrator's remuneration and costs of the DCA were not to be paid from the contributions to be made under the DCA, and an interim dividend was to be made before 30 May 1998, and further and in the alternative in failing to exercise due care and diligence as required by s.232(4) of the Law by failing to prepare an accurate deed instrument;

   (d)in that he breached s.439A(3) of the Law by failing to convene the second creditors meeting in accordance with s.439A(3);

   (e)in that he failed to lodge a copy of the DCA with the ASC as soon as practicable in accordance with s.450B(c) of the Law;

   (f)in that he breached reg.5.6.27(6)(b) of the Corporations Regulations by failing to lodge the minutes of creditors meetings/adjourned meetings held on 6 January, 27 January and 3 February, 1998 within the prescribed 14 day period;

   (g)in that in making a report to ASC pursuant to s.438D of the Law that the directors of GFT may have been guilty of various offences under the Law, he failed to report all potential offences about which he should have further and further and in the alternative in failing to exercise due care and diligence as required by s.232(4) of the Law by not reporting all such potential offences; and

   (h)       in that he failed to take sufficient steps to comply with s.450E(1) of the Law."

1. Following extensive consultations, an agreement was reached between the parties when a consent order was made by the Board. That order required the applicant to give certain undertakings. The wording of the undertakings was also subject to considerable negotiation before it was finally settled upon and signed on 13 April 1999. The relevant undertaking was in the following terms:

   "I, WARREN PANTZER of Level 10, 131 Macquarie Street, Sydney hereby undertakes to the Companies Auditors and Liquidators Disciplinary Board:

   1.to commission at my own expense, detailed peer reviews of the my next five administrations under Part 5.3A of the Law, commencing after the date of the consent order entered in my matter. The reviews will be conducted by a person (whose firm does not have a Newcastle office or presence) nominated by the President of the IPAA (NSW Division). The detailed peer reviews will require the peer reviewer to be commissioned by me at the commencement of each administration. The reviewer is to have an ongoing involvement throughout each administration and will review the files of each administration at such times during the course of each review as the reviewer may determine.

   2.should the five detailed peer reviews be satisfactory to the reviewer, to commission at my own expense, overviews of my next five administrations under Part 5.3A of the Law, by the person referred to in paragraph 1, each such overview will be commissioned at the end of each administration as per section 435C(a)(b) of the Law. The reviewer will review the files of each administration at such times during the course of the review as the reviewer may determine;

   3.in the event that any of the five detailed reviews not be satisfactory to the reviewer, to commission at my own expense, detailed peer reviews of my next five administrations under Part 5.3A of the Law, by the person referred to in paragraph 1 and on the same terms as are set out at paragraph ;

   4.as part of the commissions referred to in paragraphs 1, 2 and 3, to require the person conducting the detailed peer reviews and overviews, to provide ASIC forthwith with a final report in respect of my conduct of each administration under Part 5.3A of the Law; and

   5.to provide ASIC with copies of all communications between me, or my solicitors and advisers, on the one hand, and the person conducting the peer review."

1. ASIC contended that the applicant had not complied with his obligations under paragraph 1 above, and brought a second complaint to the Board alleging, pursuant to subsection 1292(9), that the applicant had contravened an undertaking given pursuant to a requirement under that subsection. The issue was whether there had been a contravention and, if so, what appropriate order should be made under the section. The Board found that there had been a contravention and suspended the applicant's registration as a liquidator for a period of seven days. On review of that decision, the issues remain the same.

2. The applicant works within the same firm as Mr Tolcher, with whom he had conducted a number of joint administrations. Mr Tolcher was previously the subject of a complaint by ASIC brought before the Board. Those proceedings were also resolved by the giving of an appropriate undertaking by Mr Tolcher. Pursuant to that undertaking, Mr Brook was nominated by the then President of the Insolvency Practitioners Association of Australia (NSW Division) (IPAA) and was subsequently commissioned by Mr Tolcher at the commencement of each of his administrations, whether or not they were joint, to the required number. The nomination by the President, and the commissioning of Mr Brook were both in writing. The letter commissioning Mr Brook dealt with such matters as the procedures to be followed and the basis of charging.

3. Mr Brook carried out his later overviews (not detailed reviews) of the administrations in which Mr Tolcher was involved throughout 1998. Early in 1999, Mr Pantzer alleges that he had a conversation with Mr Brook indicating that he anticipated that he would be dealt with similarly by the Board. He now says that he asked Mr Brook to undertake a detailed peer review which he anticipated he would be called upon to provide. Mr Brook denies the substance of this conversation. It seems to me that his recollection is to be preferred as the more likely account of events. Not only was the undertaking by Mr Pantzer not given until some three months after this alleged conversation, but the very terms of it had not then been negotiated.

4. Mr Tolcher later told Mr Brook that he anticipated an appointment as administrator to a company and that "it could be a large and complex job". This conversation is said to have taken place on 21 April 1999. He was subsequently appointed a joint administrator with Mr Pantzer of Atmosphera Pty Limited on 27 April 1999. His evidence was that he telephoned Mr Brook on that day and left a message on his pager. Mr Brook is said to have returned the call. Mr Tolcher's evidence was that he told Mr Brook that although Mr Pantzer had been appointed jointly with him, no person had yet been appointed to do a detailed peer review in accordance with Mr Pantzer's undertaking to the Board. Mr Tolcher's evidence was that he asked Mr Brook whether he would carry out that review, and that Mr Brook agreed. This version of the conversation is denied by Mr Brook.

5. It is certainly clear that Mr Pantzer was appointed a joint administrator on 27 April and that the President of the IPAA had not nominated a peer reviewer specifically in relation to Mr Pantzer. It is now Mr Pantzer's case that because Mr Brook had previously been nominated by the President to do peer reviews in relation to Mr Tolcher's administrations, he could be regarded as a person nominated by the President to do peer reviews in relation to Mr Pantzer's administrations. As Mr Tolcher's reviews had reached the overview stage, the only missing ingredient was an agreement by Mr Brook to carry out a detailed peer review. It is Mr Pantzer's case that this agreement was reached in this conversation on 27 April, by Mr Tolcher acting on Mr Pantzer's behalf, and Mr Brook. Having secured that agreement, Mr Pantzer now says that he was not in breach of his undertaking.

6. This was not his view, apparently, when he first wrote to ASIC about the matter on 5 May 1999 in these terms:

   "I refer to my telephone conversation with you today.
   I write to confirm that, since the Consent Order was made I have tried, through my Solicitor Mr Stern, to contact Mr Steven Parbery, the President of the IPAA (NSW Division). You will be aware that the Consent Order requires the President of the IPAA to nominate a person to conduct the peer review reviews [sic] required. Mr Stern finally spoke with Mr Parbery last week, only to learn that he had recently been replaced as President of the IPAA. Mr Gavin Thomas is the current acting President. Accordingly, I spoke with Mr Thomas for the first time last Friday April 30, and again on Monday May 3, and I am still awaiting his nomination of a person to conduct the reviews.
   I mention this to you because these delays will precipitate a delay in the filing of reports with you by the peer reviewer appointed to the task. Since the Consent Order made by the CALDB I have been appointed to two further jobs as Voluntary Administrator, the first on March 19 and the second more recently on April 27.
   I have provided Mr Thomas with a copy of the Consent Order, and as you will appreciate this matter is now beyond my control. I await Mr Thomas' decision."

1. It was this letter which started the chain of events leading to the present proceedings. It is obvious from the terms of the letter that Mr Pantzer was aware he had not complied with the undertaking in that he had not secured the nomination of the President. Since that letter, however, Mr Pantzer has engaged in a course of rationalisation and quibbles concerning the interpretation of the undertaking and concerning alleged conversations in order to justify his present case that he is not in breach.

2. He now says that paragraph 1 of the undertaking, in its terms, refers to administrations rather than the conduct of the administrator. Thus, in the case of joint administrations, it would be the task of the peer reviewer to review the administration as a whole, rather than the conduct of each or both administrators. To my mind, this is clearly contrary to the negotiated terms of the undertaking.

3. The Board was aware of Mr Pantzer's involvement in joint administrations prior to the making of the consent order. Indeed, the Gartrell Fruit case concerned one such joint administration. The point of the undertaking, however, and of the preceding order, is that the conduct of the person against whom the complaint is made is to be examined by the peer reviewer in whatever administration it is manifested. The fact that the undertaking requires a commissioning by Mr Pantzer establishes the personal connection between Mr Pantzer and the reviewer. The fact that the possessory adjective "my" is used throughout the undertaking indicates that it is Mr Pantzer's personal conduct as administrator which is to be the subject of a review. Mr Pantzer now says that this is impractical and that it is impossible to discern what is the conduct of any particular administrator in a joint administration. Firstly, it is not open to Mr Pantzer to determine the practicality of the undertaking which he himself has given, following negotiations. Secondly, the interpretation which Mr Pantzer now seeks to place on the undertaking seems to me to be an afterthought, relied upon to avoid the consequences of his failure to carry out the undertaking prior to accepting the appointment as joint administrator of Atmosphera Pty Limited.

4. I find this as a fact. Whether or not the conversations between Mr Brook by Mr Tolcher were in accordance with the evidence given is not to the point. It is clear that prior to 27 April, there was no nomination by the President of Mr Brook or any other person to carry out a detailed peer review of the applicant's administrations. This is recognised in his letter of 5 May. There is no mention in that letter of the fact that Mr Brook was appointed on 27 April. This is a further indication that the supposed proxy appointment and commissioning is a recent gloss. For the administrations subsequent to Atmosphera Pty Limited, Mr Lord was appointed. He was nominated in writing by the then President on 5 May 1999 and was subsequently commissioned by Mr Pantzer. Mr Pantzer was well aware of the two-step appointment procedure. The method of commissioning Mr Brook by Mr Tolcher would have been known to him. The letter engaging Mr Brook was written by Mr Tolcher on 29 December 1998 (T272).

5. Although I am of the view that even an oral commissioning of a person previously nominated by the President in a different context would not have been a sufficient compliance had it taken place on 27 April, the date on which Mr Pantzer became an administrator, it seems to me, in any event, that the conversation as alleged did not take place on that day. The evidence indicates that Mr Brook finally changed his mind and agreed to do the detailed review of Mr Pantzer's participation in the Atmosphera administration on 7 May, not on 27 April.

6. There are a number of reasons to support this conclusion. Firstly, the alleged 27 April conversation was not mentioned in the letter of 5 May and indeed would be inconsistent with the contents of that letter. Secondly, to this day, there is no letter commissioning Mr Brook as there was with Mr Lord. Thirdly, the stock letter of 7 May, informing Mr Brook of yet another joint administration in which Mr Pantzer and Mr Tolcher were appointed (T273), is no indication of an already existing status as detailed reviewer. Fourthly, there is the evidence of Mr Brook himself, which I accept. He was a much more convincing witness than Mr Pantzer, who continually equivocated (as the Board also discovered). Fifthly, there is an inherent improbability in the timing of the alleged telephone call by Mr Tolcher to Mr Brook (being after business hours) and the fact, as alleged, that Mr Brook returned the call the same day (which in any event would have been after the effective appointment as administrator on that day). Sixthly, there is an inherent contradiction in what Mr Tolcher says and what subsequently happened. If he had settled with Mr Brook and was confident that the undertaking had then been complied with by Mr Pantzer through Mr Tolcher's agency, there is no reason why Mr Pantzer would have been continuously seeking contact with the President of the IPAA as he subsequently alleged in his correspondence. Finally, and most importantly, the account of the Brook/Tolcher conversation does not appear in Mr Pantzer's statement. It apparently has arisen as an afterthought and has, in Mr Pantzer's mind, now assumed an unwarranted importance.

7. Although, as the Board acknowledged, a high standard of proof is required in alleging breach of an undertaking, I am of the view that this standard has been achieved. The terms of the undertaking are clear and Mr Pantzer did not comply with it before accepting what apparently was a large (and therefore valuable) administration.

8. There remains only to consider the appropriate order that should be made. The relevant subsections are as follows:

   "1292(9)        Where, on an application by the Commission for a person who is registered as an auditor, as a liquidator or as a liquidator of a specified body corporate to be dealt with under this section, the Board is satisfied that the person has failed to carry out or perform adequately and properly any of the duties or functions mentioned in paragraph (1)(d), (2)(d) or (3)(d), as the case may be, or is otherwise not a fit and proper person to remain registered as an auditor, liquidator or liquidator of that body, as the case may be, the Board may deal with the person in one or more of the following ways:

   (a)by admonishing or reprimanding the person;

   (b)by requiring the person to give an undertaking to engage in, or to refrain from engaging in, specified conduct;

   (c)by requiring the person to give an undertaking to refrain from engaging in specified conduct except on specified conditions;

   and, if a person fails to give an undertaking when required to do so under paragraph (b) or (c), or contravenes an undertaking given pursuant to a requirement under that paragraph, the Board may, by order, cancel, or suspend for a specified period, the registration of the person as an auditor, as a liquidator or as a liquidator of a specified body corporate, as the case may be.

   1292(10)        Where, on an application by the Commission for a person who is registered as an auditor, as a liquidator or as a liquidator of a specified body corporate to be dealt with under this section, the Board is empowered to deal with the person as mentioned in subsection (9), the Board may so deal with the person:

   (a)if the Board is required to make an order under subsection (6) on the application – in addition to making such an order; or

   (b)otherwise – in addition to, or instead of, cancelling or suspending the registration of the person as an auditor, as a liquidator of that body, as the case may be."

9. It was submitted on behalf of the applicant that the remedies in paragraph (a) of subsection (9) are still available. It was said that the Board (and therefore this Tribunal) had the power to deal with any breach of the undertaking simply by admonishing or reprimanding Mr Pantzer. This submission was based upon a contention that in the last paragraph of the subsection, the words "under that paragraph" refer to the last named paragraph, namely paragraph (c). It is common ground that the undertaking given by Mr Pantzer was under paragraph (b). The argument was that the words "that paragraph" referred to the last named paragraph and that, as it had no application, the Board's remedy did not lie in cancellation or suspension.

1. To my mind, this is contrary to a plain reading of the subsection. The phrase "that paragraph" simply refers to which of paragraphs (b) or (c) had application in the circumstances. It would be an absurd result if the available sanction depended upon whether the undertaking was positive or negative in form. In my view, the Tribunal's power in proceedings under this subsection is limited to ordering cancellation or suspension if a contravention of an undertaking is established, or to refrain from making any order.

2. An alternative argument was based upon subsection 1292(10) where under it was submitted that the Tribunal had power to apply any of the sanctions under paragraph (a), (b) or (c). That argument was dealt with eloquently by the Board and I respectfully adopt their reasoning as follows:

   "The Respondent argued that the Board is empowered to deal with the Respondent as mentioned in subsection (9) (being the last paragraph of that subsection) and that being so empowered the Board to impose of any of the sanctions in paragraphs (a) (b) and (c), in terms of paragraph (b) of subsection (1), "in addition to, or instead of, cancelling or suspending the registration".
   The Board sees difficulties with that interpretation as well:

• The Board believes it is empowered to deal with the Respondent only in terms of the last paragraph of subsection (9) which the Board interprets as giving it power only to cancel or suspend registration or make no order. Thus, it does not believe that it has power to do anything else "in addition to or instead of cancelling or suspending the registration".

• Subsection (10) uses the expression "where the Board is empowered to deal with the person as mentioned in subsection (9), the Board may so deal with the person" (emphasis added). In the present case, the Board can, on the Board's interpretation of the last paragraph of subsection (9), only "deal with" the Respondent by cancellation or suspension, so the ancillary powers of paragraphs (a), (b) and (c) in subsection (9) are not available to it under subsection (10).

• Further, the words "in addition to or instead of cancelling or suspending the registration" in paragraph 1292(10)(b) make it clear that the earlier reference in subsection (10) to the Board being "empowered to deal with the person as mentioned in subsection (9)" is referring only to the powers under paragraphs 1292(9)(a), (b) and (c), not the powers of cancellation or suspension given in the last paragraph of subsection 1292(9). This interpretation would give meaning to paragraph 1292(10)(b) which is meaningless if that quoted phrase refers to the last paragraph of subsection (9).

• We think that the obvious intention of subsection (10) is to give the Board when dealing with a person under subsections (1)(d), (2)(d) or (3)(d) where the first paragraph of subsection (9) applies, the power to impose the ancillary sanctions in subparagraphs 1292 (9)(a), (b) or (c) in addition to or instead of the principal powers of cancellation or suspension of registration. We do not consider that the intention of subsection (1) is to countermand the last paragraph of subsection (9) to give the Board the ancillary powers it has already exercised pursuant to subsection (9), which is in effect what the Respondent argues."

1. The choices, therefore, are to order cancellation of the applicant's registration as a liquidator, suspension of that registration or (pursuant to the discretion inherent in the word "may") to decline to make any order.

2. Cancellation would not be appropriate. There is no question (as the Board agreed) of Mr Pantzer not being a fit and proper person to remain registered as a liquidator. Declining to make an order would also be inappropriate in my view. Having been satisfied that there was a breach of a solemn, written undertaking given to the Board in order to conclude proceedings brought in a different context, it is important to ensure that the undertaking is given due weight. It might have been appropriate to revive the Gartrell Fruit proceedings in the event of such a breach. The legislation does not contemplate that course however. The fact that instead it contemplates a suspension, rather than a revival of the original proceedings which gave rise to the undertaking, indicates the seriousness with which such undertakings must be regarded.

3. Mr Pantzer's eagerness to take on the position of administrator before ensuring that he had complied fully with his obligations indicates a careless attitude at best. His subsequent arguments and attempts to justify the unjustifiable have not helped his case when considering his attitude to the importance of the undertaking. An appropriate order, in my view, was made by the Board in suspending his registration as a liquidator for a period of seven days.

4. I am now asked to reconsider this and to decline to make any order or (if I acceded to the interpretation argument) to admonish or reprimand for a number of reasons relevant as follows:

   "1.It was the view of the Board that in practical terms the delay in the appointment of a peer reviewer of about a week after the appointment to Atmosphera had no adverse effects.

   2.The Board was not of the view that Mr Pantzer is not a fit and proper person to remain registered as a liquidator.

   3.The Board was of the view that the breach was as a result of laxity on Mr Pantzer's part and not a deliberate flouting of an order and undertaking (see T1, p20).

   4.All reviews conducted by Mr Brook, being at least ten for which Mr Pantzer was a joint appointee were found to be satisfactory, as have all peer reviews undertaken by Mr Lord of Mr Pantzer's administrations. (See the cross-examination of Mr Brook at T27, p372 at 15-35. Mr Lord has completed his five detailed peer reviews, two overviews and has one overview pending).

   5.The Atmosphera administration paid all creditors 100 cents in the $1.00.

   6.The review process conducted by Mr Lord has been totally satisfactory and not unearthed any material irregularities.

   7.No complaints have been raised by the ASIC in relation to the review process conducted by either Mr Brook or Mr Lord

   8.Mr Pantzer is an insolvency practitioner of over thirty years experience with no known complaints to the ASIC (or its predecessors) before the particular matter which caused the giving of the undertaking – and which involved a time period upon which Mr Pantzer was on leave, being the period Xmas 1998 to the end of January 1999.

   9.There is no risk to the public in Mr Pantzer remaining as a registered liquidator.

   10.Mr Pantzer has already suffered significant economic loss being the costs order against him made by the CALDB (and paid); the significant cost of his legal representation before the Board and these proceedings; and the opportunity cost of his time and involvement of preparation and hearings before the CALDB and these proceedings.

   11.The severe potential adverse consequences to third parties if Mr Pantzer is suspended, including:

   11.1.the real risk of his firm having to terminate employees because of appointments of other practitioners to his administrations; and

   11.2.inconvenience and cost to third party creditors by the appointment of fresh liquidators necessitating duplication costs, and substitution of the fresh appointees to any Court proceeding already instituted by Mr Pantzer in his capacity as liquidator of companies."

1. I have taken all these matters into account. It seems to me that the success of the administrations and the favourable result of the reviews have little bearing on the quality of the breach. There was evidence of the degree of Mr Pantzer's personal costs in defending these proceedings, which he estimates at almost $100,000. To a large extent, this has arisen because of the way in which he has chosen to proceed. There was also a submission made that the result of a suspension would necessarily be proceedings in the Supreme Court to have another person appointed as administrator in Mr Pantzer's place, in relation to a number of companies.

2. Mr Pantzer is a joint liquidator with Mr Tolcher of 17 companies, a sole liquidator of 7 companies, pursuant to voluntary administrations, a sole liquidator in a creditor's voluntary winding up, a sole administrator in a deed of company arrangement and has an involvement in two other companies which are in the process of dissolution. Subsection 1293(3) provides that if a person's registration as a liquidator is suspended, the suspension operates during the nominated period. I am not at all certain that it would be necessary to apply to the Court to have Mr Pantzer replaced in his various appointments during the seven days of his suspension. The effect of registration is simply to empower him to act in capacities in which only a registered liquidator can act. It may well be that if, during the period of suspension, Mr Pantzer does not carry out any actions which can be carried out only by a registered liquidator, the formal removal and reappointment in the various administrations may not be necessary. Clearly, it would not be necessary, for example, if Mr Pantzer were ill for seven days and was incapable of acting as a registered liquidator. However, it is not necessary to decide this. Whether an application to the Court is made is a matter upon which Mr Pantzer will proceed on advice. The difficulty of the anticipated procedures was estimated at different levels by different witnesses. Whether or not the exercise proves to be difficult is really not to the point.

3. The fact is that the legislation has seen fit to provide for suspension or cancellation in the event of breach of an undertaking. The time for admonishing or reprimanding under subsection 1292(9) has passed. The time for seeking further undertakings has also passed. If a liquidator brings proceedings to a close by giving an undertaking and then fails to honour that undertaking, the next step must be cancellation or suspension. This is not an appropriate case in which no order should be made. The integrity of the undertaking system must be preserved.

4. I agree with the Board that, in practical terms, the delay in appointment of a peer reviewer of about one week after the appointment as administrator of Atmosphera Pty Limited had no adverse effects. I also agree that the quality of the breach of undertaking is at the lowest end of the scale. Nevertheless, that breach should be recognised. I agree with the assessment of the Board that an appropriate order would be suspension for seven days.

5. Accordingly, the decision under review is affirmed.

   I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.J. McMahon (Deputy President)

   Signed:         .....................................................................................
     Dominika Rajewski, Associate

   Date/s of Hearing  21-22 August 2000
   Date of Decision  01 September 2000
   Counsel for the Applicant        Mr Robert Harper
   Solicitor for the Applicant         Ernst & Young
   Solicitor for the Respondent    Australian Government Solicitor

   Counsel for the Party Joined   Mr Jonathon Priestley
              Solicitor for the Party Joined    Principal Legal Officer, ASIC