Re Hayes and Australian Securities and Investments Commission
[2006] AATA 1506
•20 December 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1506
| ADMINISTRATIVE APPEALS TRIBUNAL GENERAL ADMINISTRATIVE DIVISION | ) ) N2006/237 ) | |||
| Re | JULIAN HAYES | |||
| Applicant | ||||
| And | AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION | |||
| Respondent | ||||
| DECISION | ||||
| Tribunal | The Hon R N J Purvis AM QC, Deputy President | |||
| Date | 20 December 2006 | |||
| Place | Sydney | |||
| Decision | The decision under review is set aside. In lieu of such decision the Applicant should be issued a banning order that prohibits him from providing financial services for a period of one year commencing on 6 February 2006. | |||
[sgd]_____________
The Hon R N J Purvis AM QC
Deputy President
CATCHWORDS
CORPORATIONS LAW – contravention of sections 945A, 946C and 947D of the Corporations Act 2001 – banning order imposed – whether length of banning order excessive – future risk of non-compliance - reasons for contravention – appropriateness of banning order despite punitive effect – enforceable undertaking not a sufficient deterrent – the decision under review is set aside and a shorter banning order imposed.
Corporations Act 2001; sections 920A, 945A, 946C, 947D
Australian Securities and Investments Commission Act 1989; section 93A
Financial Services Reform Act 2002
Rich v ASIC (2004) 220 CLR 129
Re HIH Insurance Limited (in provisional liquidation); ASIC v Adler (2002) 42 ACSR 80 at 97-99
REASONS FOR DECISION
| 20 December 2006 | The Hon R N J Purvis AM QC, Deputy President |
| the application |
Pursuant to section 920A(1)(e) and (f) of the Corporations Act 2001 (“the Act”) a delegate of the Australian Securities and Investments Commission (“the Respondent” or “ASIC”) on 6 February 2006 made a decision banning Mr Julian Hayes (“the Applicant”) from providing financial services advice for a period of three years. The Respondent found that the Applicant had contravened the provisions of sections 945A, 946C and 947D of the Act. It was also found that the Applicant may not in the future comply with the financial services law.
The Applicant has applied to the Tribunal for review of the Respondent’s decision. The Respondent’s findings were based upon the Applicant’s conduct during the period September to November 2004 and in relation to nine specific files for clients opened by him during that period. The Applicant has, for the purposes of these proceedings, accepted and admitted the findings of fact made by the Respondent. However, he does not accept or admit a finding to the effect that there is reason to believe that he would not comply in the future with the financial services law.
The Applicant contends that in all the circumstances a banning order was not appropriate and that the Tribunal should set aside the banning order and direct that the Respondent accepts an enforceable undertaking to be given by the Applicant.
It was maintained on his behalf that the Tribunal in aid of answering the questions before it should consider and determine why the Applicant breached the corporations law; that is, determine the circumstances that caused or prompted the breach. Was it by reason of an enthusiasm to assist clients and develop a client base of his own, as suggested by the Applicant? Was it by reason of an inability or unwillingness to focus on the need to comply with the corporations law, as suggested by the acting Assistant Director, Campaigns & Compliance Branch within the Consumer Protection Directorate of the Sydney office of the Respondent? Or, as a consultant on strategic planning postulated, by reason of lack of care and professional consideration? Or, was it for some other reason?
A decision as to the appropriateness of a banning order and/or its duration, or the imposition of enforceable undertakings should, it is submitted, depend upon the reasons or motivation for the improper conduct. The Tribunal considers that there is justification for the making of this submission.
the hearing of the application
At the hearing of this application, the Applicant was represented by Mr Barrie Goldsmith, solicitor of Goldsmiths Lawyers and the Respondent was represented by Mr Jeremy Clarke of counsel instructed by Sarah Le Breton and then Sue Williams, both officers of ASIC.
The documents lodged with the Tribunal by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence and marked T1 to T10 and confidential exhibits T10A to T19. Other written material tendered on behalf of the parties was also admitted into evidence and marked accordingly, namely:
On behalf of the Applicant:
Exhibit A:Applicant’s Statement dated 21 June 2006;
Exhibit B:Applicant’s statement (11 paragraphs) dated 7 November 2006;
Exhibit C:Applicant’s statement (12 paragraphs) dated 7 November 2006;
Exhibit D:Paragraphs 1, 2 & 3 of the statement of Tamara Duffy dated 3 July 2006;
Exhibit E:Document entitled “Findings of Fact made by the Delegate and Accepted by the Applicant for the purpose of the Review” dated 14 September 2006;
Exhibit F:Copy of ASIC’s Media Release dated 27 July 2006;
Exhibit G:Document entitled “Enforceable Undertakings” dated 9 November 2006 (unsigned);
Exhibit H:Document entitled “Enforceable undertakings register” printed from ASIC’s website on 8 November 2006; and
On behalf of the Respondent:
Exhibit 1:Statement of Ann Pham dated 15 August 2006;
Exhibit 2:Statement of Robert Drake dated 13 October 2006;
Exhibit 3:Statement of Jan Redfern dated 17 August 2006;
Exhibit 4:Report by Beverly Houterman dated 16 October 2006;
Exhibit 5:Confidential statement of Gregory Gerard Fleming dated 19 October 2006;
Exhibit 6:Confidential statement of Brad Alan Veale dated 1 November 2006;
Exhibit 7:Statement of Facts and Contentions of the Applicant dated 21 June 2006;
Exhibit 8:Draft Minutes of Proposed Confidentiality Order footnoted 8 November 2006;
Exhibit 9:Booklet entitled “Entry Level Competencies for Financial Services Professionals”; and
Exhibit 10:Letter dated 21 September 2006 from ASIC to Paul Resnick Consulting Group.
Oral evidence was given by the Applicant, Mr Gregory Fleming, Mr Brad Veale, Mr Robert Drake and Ms Beverly Houterman on the first day, and then Ms Jan Redfern on the second day, upon which they were each cross-examined.
A confidentiality order was made in respect of Exhibits T10A to T19 and the written statements of Mr Fleming and Mr Veale as well as their oral evidence. Accordingly, the cross-examination of Mr Fleming and Mr Veale was held in private, and the publication of the transcript of their examinations to be limited.
relevant statutory provisions
The statutory provisions of the Act relevant to this decision are:
“…
920A ASIC's power to make a banning order
(1)ASIC may make a banning order against a person, by giving written notice to the person, if:
(a)ASIC suspends or cancels an Australian financial services licence held by the person; or
(b)the person has not complied with their obligations under section 912A; or
(ba)ASIC has reason to believe that the person will not comply with their obligations under section 912A; or
(bb)the person becomes an insolvent under administration; or
(c)the person is convicted of fraud; or
(e)the person has not complied with a financial services law; or
(f)ASIC has reason to believe that the person will not comply with a financial services law.
(2)However, ASIC may only make a banning order against a person after giving the person an opportunity:
(a)to appear, or be represented, at a hearing before ASIC that takes place in private; and
(b)to make submissions to ASIC on the matter.
(3)Subsection (2) does not apply in so far as ASIC's grounds for making the banning order are or include the following:
(a)that the suspension or cancellation of the relevant licence took place under section 915B;
(b)that the person has been convicted of serious fraud.
…
945A Requirement to have a reasonable basis for the advice
(1)The providing entity must only provide the advice to the client if:
(a)the providing entity:
(i) determines the relevant personal circumstances in relation to giving the advice; and
(ii) makes reasonable inquiries in relation to those personal circumstances; and
(b)having regard to information obtained from the client in relation to those personal circumstances, the providing entity has given such consideration to, and conducted such investigation of, the subject matter of the advice as is reasonable in all of the circumstances; and
(c)the advice is appropriate to the client, having regard to that consideration and investigation.
Note:Failure to comply with this subsection is an offence (see subsection 1311(1)).
(2)In any proceedings against an authorised representative of a financial services licensee for an offence based on subsection (1), it is a defence if:
(a)the licensee had provided the authorised representative with information or instructions about the requirements to be complied with in relation to the giving of personal advice; and
(b)the representative's failure to comply with subsection (1) occurred because the representative was acting in reliance on that information or those instructions; and
(c)the representative's reliance on that information or those instructions was reasonable.
Note:A defendant bears an evidential burden in relation to the matters in subsection (2). See subsection 13.3(3) of the Criminal Code.
(3)A financial services licensee must take reasonable steps to ensure that an authorised representative of the licensee complies with subsection (1).
Note:Failure to comply with this subsection is an offence (see subsection 1311(1)).
…
946C Timing of giving Statement of Advice
General rule
(1)Subject to this section, if the Statement of Advice is not the means by which the advice is provided, the Statement of Advice must be given to the client when, or as soon as practicable after, the advice is provided and, in any event, before the providing entity provides the client with any further financial service that arises out of or is connected with that advice.
Statement of certain information if Statement of Advice not given when advice provided
(2)If the Statement of Advice is not given to the client when the advice is provided, the providing entity must, when the advice is provided, give the client a statement that contains the information that would be required to be in a Statement of Advice by paragraphs 947B(2)(d) and (e), or 947C(2)(e) and (f), as the case requires, and by section 947D, if applicable.
Time critical cases
(3)If:
(a)the client expressly instructs that they require a further financial service that arises out of, or is connected with, the advice to be provided immediately, or by a specified time; and
(b)it is not reasonably practicable to give the Statement of Advice to the client before that further service is provided as so instructed;
the providing entity must give the client the Statement of Advice:
(c)unless paragraph (d) applies--within 5 days after providing that further service, or sooner if practicable; or
(d)if that further service is the provision to the person of a financial product and section 1019B (cooling‑off period) will apply to the acquisition of the product by the person--before the start of the period applicable under subsection 1019B(3), or sooner if practicable.
…
947D Additional requirements when advice recommends replacement of one product with another
(1)This section applies (subject to subsection (4)) if the advice is or includes a recommendation that the client dispose of, or reduce the client's interest in, all or part of a particular financial product and instead acquire all or part of, or increase the client's interest in, another financial product.
(2)The following additional information must be included in the Statement of Advice:
(a)information about the following, to the extent that the information is known to, or could reasonably be found out by, the providing entity:
(i) any charges the client will or may incur in respect of the disposal or reduction;
(ii) any charges the client will or may incur in respect of the acquisition or increase;
(iii) any pecuniary or other benefits that the client will or may lose (temporarily or otherwise) as a result of taking the recommended action;
(b)information about any other significant consequences for the client of taking the recommended action that the providing entity knows, or ought reasonably to know, are likely;
(c)any other information required by regulations made for the purposes of this paragraph;
(d)unless in accordance with the regulations, for information to be disclosed in accordance with paragraph (a), any amounts are to be stated in dollars.
(3)If:
(a)the providing entity knows that, or is reckless as to whether:
(i) the client will or may incur charges as mentioned in subparagraph (2)(a)(i) or (ii); or
(ii) the client will or may lose benefits as mentioned in subparagraph (2)(a)(iii); or
(iii) there will or may be consequences for the client as mentioned in paragraph (2)(b); but
(b)the providing entity does not know, and cannot reasonably find out, what those charges, losses or consequences are or will be;
the Statement of Advice must include a statement to the effect that there will or may be such charges, losses or consequences but the providing entity does not know what they are.
(4)The regulations may provide either or both of the following:
(a)that this section does not apply in relation to a financial product or a class of financial products;
(b)that this section does not require the provision of information of a particular kind, whether generally or in relation to a particular situation, financial product or class of financial products.”
a banning order: preventive and/or a penalty – enforceable undertakings
As earlier indicated, it was submitted on behalf of the Applicant that the Tribunal should impose and accept enforceable undertakings from him. The imposition and acceptance of enforceable undertakings are provided for by section 93A of the Australian Securities and Investments Commission Act 1989 (“the ASIC Act”). The Tribunal has power to determine the wording of the enforceable undertakings having regard to the factual situation as it is found by the Tribunal.
In the event of the Tribunal considering that enforceable undertakings are not appropriate then, it was submitted, the banning order for a period of three years is excessive.
The legal principles significant to a decision as to the period of any banning order is dependent upon the extent to which the Tribunal determines that the community warrants protection. However, a banning order does not merely serve the purpose of protecting the public but inevitably exposes the person the subject of the order to a penalty (Rich v ASIC (2004) 220 CLR 129). Thus even if the purpose of a banning order is intended to be protective (Rich v ASIC (supra)), the fact that the effect of such an order is to inflict a penalty on the person the subject of the order does not make the order unreasonable or inappropriate.
Having in mind the nature of the failures to comply with relevant statutory provisions by the Applicant, it is submitted on behalf of the Respondent that it is appropriate that any order made against the Applicant should involve a level or degree of deterrence. The enforceable undertakings suggested on the Applicant’s behalf entail, according to the Respondent, “merely a restatement of the Applicant’s legal obligations and wholly fails the purpose of deterrence”.
It is not however necessary to decide whether the purpose of a banning order is protective or punitive. In Rich v ASIC (supra) the court identified disqualification or banning orders and their purpose as being protective rather than punitive. Thus there is a clear distinction to be drawn between the purpose of the imposition of a banning order and its effect. The question for the Tribunal to determine is whether a banning order ought to be made irrespective of its possibly punitive effect.
factual situation and findings of fact
Mr Hayes – qualifications and experience
The Applicant was born on 12 August 1968. He has a Batchelor of Economics degree from the University of Queensland and an Advanced Diploma of Financial Planning. He is an Accredited Derivatives Adviser 1 and 2 with the Australian Stock Exchange.
Prior to his joining Macquarie Bank Limited (Macquarie Bank) in March 2002, the Applicant had been employed from July 2001 to February 2002 by Elders Limited in its Private Client Services division and by Qantas from October 1994 to July 2001 as Assistant Area Manager, Gold Coast, Area Manager, Townsville and Corporate Account Executive.
With Macquarie Bank the Applicant initially was employed as a Direct Sales Consultant, as an Associate Paraplanner from August 2003 to July 2005 and as a Paraplanner from July 2005 until his resignation in December 2005. From September 2004 until December 2005 he also was engaged as a Private Client Adviser.
At the time of the Applicant becoming employed by Macquarie Bank and by reason of having completed the Advanced Diploma of Financial Planning, modules 1 and 2, he was granted a Representative Authority allowing him to provide a limited range of financial advice. He was initially employed as a consultant selling Macquarie Bank products to existing clients. Between February 2002 and August 2003 he voluntarily undertook courses in investment planning, superannuation and a derivatives course with the Australian Stock Exchange. In August 2003 he was promoted to the position of an Associate Paraplanner and in July 2005 to the position of a Paraplanner.
In the position of an Associate Paraplanner, where he was engaged at the time of the relevant statutory infringements, his duties included:
·“Assisting Macquarie (Bank’s) Investment Planning Service with individual aspects of statements of advice;
·Assisting advisers to identify information required in order to make strategy and product recommendations;
·Provision of technical support to Macquarie (Bank’s) stockbrokers across Australia, particularly with regards to superannuation;
·Liaising and negotiating with advisers on sale of bonds; and
·Sourcing of government, semi-government and corporate bonds for advisers.”
(Exhibit A, para 12)
His work as an Associate Paraplanner was supervised by Mr Greg Fleming who would be shown the Applicant’s work, upon which he would comment and make recommendations.
During this time, the Applicant on a voluntary basis completed courses in taxation, estate and investment planning, and financial plan construction and review. He said that as an Associate Paraplanner he did not receive any on-the-job training from Macquarie Bank (Exhibit A, para 14).
It was in September 2004 that following a discussion with Mr Fleming and with his approval, the Applicant began to apply himself to being a Financial Adviser and putting together a book of clients. He was then to act as a Private Client Adviser as well as an Associate Paraplanner. He decided initially only to contact family members, friends and fellow employees at Macquarie Bank. He was not required to have Mr Fleming supervise his files and only when Statements of Advice were thought by the Applicant to be not based on a template used by Macquarie Bank, was he to have them approved.
The training undergone by the Applicant was detailed by Mr Fleming, a Technical Manager with Macquarie Bank in his confidential evidence (Exhibit 5). It was extensive. The Applicant underwent all recommended and required instruction and training, in some instances exceeding that specified. It was Mr Fleming who approved the Applicant working towards his becoming a Client Adviser. He was to start practising on his family, fellow employees of Macquarie Bank and friends. Thereafter, the Applicant came to Mr Fleming regularly to provide updates on the client list he was putting together and initially Mr Fleming assisted the Applicant in analysing a client’s financial needs and preparing financial advice. He then allowed the Applicant to do it himself. According to the Applicant, neither Mr Fleming nor anybody else on behalf of Macquarie Bank told him exactly what considerations he should look for or how exactly he should deal with these activities. He simply “spoke to a number of other Private client advisors to get information” (Exhibit A, para 19).
The contraventions
According to Ms Ann Pham, Compliance Analyst with the Compliance Directorate of ASIC, the examination of the Applicant’s files occurred in the following circumstances:
“…
5.MEL [Macquarie Equities Limited] is an AFS [Australian Finance Services] licensee holding authorisations to provide financial product advice and to deal in a wide range of financial products to retail and wholesale clients. All Macquarie representatives authorised to provide financial advice were employees. Within the context of ASIC’s “Super Choice of Fund Switching Campaign” a number of licensees were chosen for review. MEL was one such licensee. In response to a Notice issued under section 912C of the Corporations Act 2001 (Cth) (‘Corporations Act’) requesting a list of advisers providing switching advice on superannuation for the period from 1 August 2004 to 22 November 2004 MEL provided a list of over 40 advisers who were involved in giving such advice.
6.A number of advisers were randomly selected from the list and a number of those advisers’ clients were selected for review under the campaign. Notices pursuant to section 30 of the ASIC Act were issued to MEL. Mr Julian Hayes was one of the advisers so selected. Two of Mr Hayes’ files were randomly chosen. A review of these two files indicated issues arising in respect to compliance with sections 945A and 947D of the Corporations Act. It was therefore decided to obtain under a further section 30 notice all of Mr Hayes’ files which involved switching between superannuation funds advice for the period from August to November 2004. 10 files were produced in total. Nine of those files involved switching funds advice and one file involved retirement advice.”
… (Exhibit 1).
The admitted contraventions all occurred then between September 2004 and November 2004; that is, in the early months of the Applicant’s becoming a Private Client Adviser. All of the clients referred to in the Respondent’s areas of concern were either friends, family members or fellow employees. The Applicant says that the contraventions and his non-compliance with the law as well as compromising his professionalism were committed by him out of enthusiasm to assist the clients and develop a client base of his own.
The Applicant does say that he was not, even after completing the various courses above referred to, aware of the specific requirements of sections 945A, 946C and 947D of the Act. He also states that on becoming a Client Adviser in September 2004 he,
“… simply continued to complete the template in the same way that Client Advisers had previously completed them and given them to me as Associate Paraplanner … I simply did not detail all of the charges and all of the benefits [part of the admitted statutory contravention] that the template required me to detail because it had never been the practice beforehand to do so” (Exhibit C, para 10).
Further,
“As Client Adviser basically I had the same duties and responsibilities as when I was Associate Paraplanner save that I was responsible for locating and managing my own clients and obtaining all relevant information from them. So far as steps taken in the production of any documents were concerned, I simply continued to do what I had done when I was an Associate Paraplanner” (Exhibit C, para 11).
The Applicant said that he was doing what he had been taught or told to do; he was following instructions. It was the practice, he said, at Macquarie Bank. I breached the Act, he admitted, it was unwilling. I accept, he said, responsibility. However, I was not aware, he also said, that I was breaching the law at the time even be it this does not justify breaches of the Act.
Whilst the Applicant contended that he received little training or supervision from those more senior to him at Macquarie Bank, it is apparent that he was well educated in his selected field of endeavour and that he had for a number of years being carrying out the work of an Associate Paraplanner receiving material including templates from Client Advisers. Indeed, a part of the course that he studied was, as here relevant, how to give advice on superannuation switching. He was instructed on how to get to know the client and how to assess the effect on a client of switching.
I am satisfied that the Applicant knew or should have known the substance of the statutory requirements even if he was not aware of the precise legislative provisions or section numbering.
The principles behind the legislative provisions were commonly known as the fundamentals of financial planning. Whatever the situation may have been the Applicant now accepts full responsibility for the breaches and appreciates their seriousness. He does maintain that there was inadequate monitoring or supervision of him but says that he does not rely upon this in mitigation but rather “to demonstrate the circumstances in which he worked”. Having in mind the period for which the Applicant had worked for Macquarie Bank as an Associate Paraplanner prior to commencing to act as a Client Adviser, a period in excess of 12 months, and his qualifications, the Tribunal is satisfied that he was aware or should have been aware of the abovementioned fundamentals. He was acting in dereliction of his responsibilities to his employer and his private clients to not have complied with the fundamentals.
The Respondent’s findings of fact – accepted by the Applicant
The Respondent’s Findings of Fact for the purpose of this review are as follows:
1.“That between September and November 2004 Mr Hayes was a representative of MEL, the holder of Australian Financial Services Licence No. 237504.
2.That a Macquarie Super Accumulator ("MSA") Rollover Authority Form and an MSA Application Form, both dated 28 September 2004 show that Mr Hayes provided a financial service to Natasha Ciric by arranging the rollover of her superannuation from The Small Business Super Fund into the MSA.
3.That PPS Super Account Application Forms and PPS Super and Pension Account Rollover Authority Forms, dated 28 September 2004 show that Mr Hayes arranged for Felicity Cahill to rollover her superannuation from Zurich Super into the PPS Super and Pension Account ("PPS") and arranged for Michael McDonald to rollover his superannuation from HostPlus Hospitality Super into the PPS.
4.That a SOA should have been provided to Ms Ciric, Ms Cahill and Mr McDonald as soon as practicable after 28 September 2004 and in any event not later than the 5th day after the superannuation products were issued or sold to them.
5.That the SOA was given to Ms Ciric on 29 November 2000, 2 months after her application for investment in the MSA. In relation to Ms Cahill and Mr McDonald, a SOA was not provided for their rollovers into the PPS but instead a SOA relating to the MSA was issued to Ms Cahill on 15 November 2000, 2 months after the application for investment in the PPS and to Mr McDonald on 21 October 2004, 3 weeks after his application for roll over into the PPS.
6.That in the case of Ms Cahill, she was rolled over from the PPS to the MSA on 15 November 2004, one month after she had initially been invested in the PPS on 18 October 2004
7.That it is quite clear that Mr Hayes contravened section 946C of the Act in relation to Ms Ciric, Ms Cahill, and Mr McDonald.
8.That another SOA, for Marcelle Candy, indicated there was a death and disability cover of $154,000 attaching to her Equipsuper Plan.
9.That the SOA for Ms Candy did not include information that Mr Hayes knew or could reasonably have found out about pecuniary or other benefits that she would lose by rolling over to the MSA, in particular the insured benefits.
10.That Mr Hayes was in possession of details about the insurances attaching to Ms Candy's superannuation investments and he could reasonably have found out about, and disclosed, any insurance benefits that Ms Candy would lose by rolling over to the MSA. Mr Hayes could have easily asked her for the previous superannuation funds' documentation concerning insurance or simply made enquiries with the previous fund managers or insurers.
11.That written submissions were made about the Candy account that at the time of rollover she had informed Mr Hayes that she intended to resign from her then employer (in which case she would lose the insurance benefit) and subsequently resigned on 26 May 2005. But the SOA was provided to Ms Candy on 5 November 2004 – 6 months before her resignation. It is submitted that the recommendation to Mr Hayes' sister, Ms Candy, may have been premature. Regardless of Mr Hayes' relationship to Ms Candy and whether the recommendation was premature, the SOA was deficient in that it did not disclose personal circumstances that were relevant to the recommendation and that had a bearing on an investment decision at the time. The SOA clearly omitted information that specifically required disclosure in the SOA by section 947D.
12.That Mr Hayes contravened section 947D of the Act in relation to Ms Candy.
13.That there was no information or evidence on the client files for Natasha Ciric, Felicity Cahill, and Michael McDonald to demonstrate Mr Hayes made reasonable enquiries in relation to their personal circumstances and had regard to information obtained from such enquiries in providing them with the advice.
14.That there was no information or evidence on the client files for Ms Ciric, Ms Cahill, Mr McDonald, Marcelle Candy, Nicola Gilhespy, and Anthony Brooks to demonstrate that Mr Hayes made reasonable enquiries in relation to their pre-existing superannuation arrangements and benefits and compared those to the respective MSA and PPS products.
15.That written submissions were made that Mr Hayes did conduct enquiries for Ms Ciric, Ms Cahill, Mr McDonald, Ms Candy, Ms Gilhespy, and Mr Brooks. Regardless of the submissions that he had conducted enquiries, there was no evidence on file of Mr Hayes' enquiries or assessment of information resulting from his enquiries, and a comparison of such information with the PPS and MSA. There is no tangible evidence on the client files to support Mr Hayes' submissions.
16.That a client profile for Felicity Cahill was dated 10 November 2004, 2 months after the application to invest in PPS on 28 September 2004. Further, the client profile for Ms Cahill did not contain details of her pre-existing superannuation arrangements or the name of the new fund proposed for investment.
17.That the client profile for Mr McDonald was dated 14 October 2004, 2 weeks after his application for investment in the PPS on 28 September 2004.
18.That the SOA for Ms Candy, Ms Hofman and Ms Bligh set out some particulars of their pre-existing superannuation and retirement investments based on information from the respective funds but did not contain sufficient information to enable a proper comparison of the performance of those funds to MSA so as to assess whether it was in their interests to transfer to the MSA or to any other of the superannuation funds to achieve their objective of consolidating their funds.
19.That the SOA for Ms Hofman dealt with the benefits of transferring from MLC Masterkey Business Super but did not deal with benefits or negative aspects of transferring from the other funds in relation to the MSA.
20.That the SOA for Ms Pribilovics did not deal with benefits or negative aspects of transferring from the other funds in relation to the MSA.
21.That the SOA for Ms Bligh does not contain any particulars of her pre-existing superannuation funds.
22.That written submissions were made that Mr Hayes did conduct enquiries for Ms Bligh and Ms Candy, and that Ms Pribilovics was aware of the MSA. Regardless of submissions that he had conducted enquiries, there was no evidence on file of Mr Hayes' enquiries or assessment of information resulting from his enquiries, and a comparison of such information with the PPS and MSA. Again, there is no tangible evidence on the client files to support Mr Hayes' submissions.
23.That it is evident that when Mr Hayes provided advice to replace pre-existing superannuation and retirement products with the MSA and PPS products he did not investigate and consider both the new products and the old products.
24.That it is also apparent that Mr Hayes did not determine the relevant personal circumstances in relation to the advice and did not make reasonable enquiries about those relevant personal circumstances. There was no evidence that Mr Hayes assessed such circumstances as his clients' need for retirement income and/or capital growth, tolerance to capital loss risk, and the appropriateness and performance of their existing retirement portfolio.
25.That it is acknowledged that the level of enquiry and analysis required will vary depending on the advice requested by a client and that a comprehensive analysis of a client's full financial position may not be necessary where the client has sought personal advice on a specific product such as superannuation. However, the evidence shows that Mr Hayes did not even make adequate enquiries and assessment of his clients' pre-existing superannuation position and ongoing superannuation/retirement needs and did not adequately evaluate the pre-existing and replacement products.
26.That it was also submitted that none of the clients lost money as a result of the actions. However, the point is that Mr Hayes did not make enquiries into the pre-existing superannuation funds' performance at the time he provided the advice and so was not in a position at any time to assess whether there were opportunities to make better gains from the pre-existing superannuation funds.
27.That on the basis of the evidence Mr Hayes contravened section 945A of the Act.
Dated 14 September 2006”
It is noted that in findings 13 to 16, 18, 19, and 22 to 26 a reference is made to the absence of information or evidence in the documents contained in the relevant files showing that particular information had been obtained. It is stated that there was not evidence indicating that the Applicant had investigated and considered relevant products or that he had made enquiries as to relevant personal circumstances. There is generally not a finding to the effect that the Applicant did not make the enquiries or obtain relevant information rather that the files did not contain evidence of this having been done. The Applicant was clearly in breach of the legislation in not evidencing his enquiries, the ascertaining of information and his carrying out relevant enquiries as to benefits or negative aspects that might follow from a switching of funds.
The Tribunal considers, having considered the Applicant’s evidence tendered before it, that the importance of compliance with the statute and the evidencing in writing of enquiries made and information obtained having been brought to the attention of the Applicant, that confidence can be had in his complying with these requirements in the future. This does not diminish the seriousness of his not having done so in the past, even be it the clients were persons known to him.
objective assessment of culpability
The Respondent retained Ms Beverly Houterman BS, MA, MBA to prepare a report as to the degree of culpability displayed by the Applicant. She detailed in her report the responsibility of financial advisers and reviewed the circumstances stated by the Applicant in his statement material. She commented upon significant aspects of the latter noting particularly that the fact of his providing advice to relatives and friends does not lower his obligation to provide appropriate advice. As she put it “He has a similar duty of care to each of his clients” (Exhibit 4, p6).
Ms Houterman reviewed each of the nine files and commented that:
“…
I have reviewed each file and the findings made by the ASIC Delegate. After reading each file, I find that they are significantly deficient in the whole and that deficiencies are not reflective of ignorance but rather of haste and a lack of care and professional consideration.
… All of the fact finds were significantly deficient.
…
There is little or no justification provided for moving clients away from their original investment. The limited rationale for joining the Macquarie fund is pure ‘boilerplate’ and contains no reasons based on the client’s needs. The reasoning is the same for all clients.
…
Where an attempt has been made to justify consolidation from existing accounts to a new account (Macquarie) the reasoning is difficult to follow and no attempt seems to have been made to see if one of the existing funds would be appropriate to receive the consolidation of accounts.
The recommended asset allocation has no reference to any assessment of the client’s preferred asset allocation. … The client should have been provided with a full explanation of how the Wrap facility worked and its costs prior to committing to the transfer.
…
While a reasonable attempt has been made within the SOAs on fee disclosure the referring of the client to a web site [sic] for additional disclosure in [sic] totally unacceptable.”
In summary, Ms Houterman stated:
“Given his experience and education up to the date of the alleged contraventions, it is rather disingenuous for Mr. Hayes to plead ignorance as an excuse for contravention of his obligations. I believe that Mr. Hayes should have had sufficient knowledge to understand his obligations and to meet them if he so chose. …
… Mr. Hayes has not consistently applied the knowledge he should have obtained in his first course Introduction to Financial Planning, let alone the more advanced courses he undertook. There is no attention paid to data collection, needs analysis or risk management issues. I did not see a discussion of binding nominations which should accompany any recommendation to switch into a superannuation fund. There was no financial modelling to show the long-term impact of the switch or that the new fund would better achieve the client’s retirement savings amount they required.
…
… As there is no basis for the advice being given, no adequate assessment of existing superannuation funds and no matching of a clients preferred portfolio to the investment recommendations, these clients have been put at risk of suffering a loss or not achieving the results they might have achieved had they not switched. …”
…
Ms Houterman concluded her report by observing:
“….
The inadequately completed fact finds, the lack of a basis for the advice, and the use of non-specific boilerplate language, in addition to the lack of consideration given to appropriate asset allocations, go well beyond the current issue of inappropriate advice for superannuation switching … I see no indication that Mr. Hayes is acting out of ignorance or enthusiasm and I have no reason to expect that he will provide appropriate advice in the future without significant changes in the way he provides financial advice.
…
A three year ban may seem a harsh penalty. However the financial services industry, its consumers and its regulator want to ensure that when financial planning advice is provided it is appropriate and complying. The risks to the industry and to consumers when inappropriate advice is given is so high, that significant penalties must apply where regulatory obligations are not met.
… I am of the opinion that an Enforceable Undertaking would not provide an appropriately strong general deterrent to the financial planning industry.”
In her oral evidence Ms Houterman identified an apparent lack of care on the part of the Applicant and a greater need for him to attend to detail. It is, she said, a matter of attitude, a necessity to see the interests of the client as uppermost. From her examination of the files it appeared to her that the Applicant did not seem to understand the role of a financial planner.
I interpose here by noting that the subject events occurred in the early months of the Applicant becoming a financial adviser, that they were concerned with relatives, friends and fellow employees and were said by the Applicant to have been under the initial supervision of Mr Fleming. Whether by reason of his confidence in the Applicant or otherwise, it is apparent that the supervision was not effective. What the Respondent discovered from its examination, a supervisor or mentor should have discerned on inspection of relevant files and documents.
Ms Houterman said that it was the condition of the files that led to her supporting the banning order. A lack of a sense of responsibility is what had, she said, led to or was the primary cause of the contraventions. In the final analysis, it is the financial planner who is responsible for the giving of advice that will or should improve the financial position of the client. But in this context, the adviser is to know the client, know the product, how it works and what it provides and then match the product to the needs of the client. The written material in the files did not evidence that the Applicant did any research of the products the clients already had or the nature of those that they might acquire. There is no indication of how a product might meet their needs. This research may have been done but there was no indication to this effect.
concern as to current and on-going ability of the applicant to be retained as a financial adviser
As earlier indicated, the Respondent was of the opinion that the Applicant may not in the future comply with financial services law. The reasons provided in support of the Respondent’s decision under review did not specify the basis upon which this opinion was made other than relying upon the prior conduct of the Applicant.
There was confidential evidence adduced before the Tribunal by a Division Director of Macquarie Financial Services as to the Applicant not having, in early 2005, followed a required process in relation to Statements of Advice and having them reviewed by management. The Applicant explained that pressure of his work led to the non-compliance.
One can only speculate as to why the subject files of the Applicant were not the subject of supervision or monitoring in about November 2004.
Ms Houterman accepted that a banning order would make it more difficult for the Applicant to re-enter the industry. The longer he was away from it the more difficult it would be to adjust to inevitable changes.
Understandably, Macquarie Bank was concerned when informed of the Applicant’s contraventions. It is apparent that the company recognised the need not only for an internal investigation, but to reconsider supervising and monitoring procedures. This need does not excuse the Applicant from responsibility for his defaults. But it does lend some support for his contention that he was only following an established or adopted pattern of behaviour. The imposition of the banning order, the trauma of the investigation and the current proceedings will have a salutary effect upon the Applicant and ensure that he adheres in the future to the requisite statutory requirements.
Ms Houterman expressed some concern as to the future. An enforceable undertaking she felt would not prevent the Applicant engaging in conduct prejudicial to the securities industry. Irrespective of the need to protect the public, personal and general deterrence were important. In the absence of the latter, the public is not fully protected. As she put it, the Applicant, in her opinion, knew what he had to do and did not do it. The Tribunal does not take issue with these observations of Ms Houterman. However, it is of the view that as she herself says in her report “the deficiencies are not reflective of ignorance but rather of haste and a lack of care and professional consideration”. The latter can be subject of work place practice. The Tribunal is of the opinion that the Applicant, when he returns to the securities industry, will apply care and professional consideration to each and every matter that he handles. Haste is capable of modification.
banning order and enforceable undertakings
The contraventions committed by the Applicant were common to each of the relevant files. The Tribunal is minded to the view, as was Ms Houterman, that the derelictions of responsibility on his part were largely attributable to haste, absence of due care and professional consideration. Whether this arose by reason of the nature of the clients and they being known to him, or otherwise is uncertain. However, what is certain is that conduct the like of that engaged in by the Applicant is contrary to the Act and could result in loss being sustained by clients. The loss would result from enquiries not being made, advice not being given and assessments not being properly made. Compliance with the legislation ensures that the adviser does carry out the exercise of knowing the client, knowing the product and how it works and what it provides and matching the product to the needs of the client. A banning order is published and involves a degree of personal and general deterrence. An enforceable undertaking is no more than a restatement of legal obligations and does not satisfy the needs of a deterrent. It is necessary to ensure that the public is protected from conduct that may be contrary to the requirements of the Act. This, as Ms Jan Redfern, Executive Director of the Enforceable Directorate of ASIC identifies, is effectively assured as best it can be by a banning order.
Ms Redfern in her evidence (Exhibit 3) said that ASIC will generally only consider accepting an enforceable undertaking when:
“…
7.ASIC will generally only consider accepting an enforceable undertaking when:
(a)it has considered starting civil or administrative enforcement action in respect of a contravention or an alleged contravention of the relevant legislation by a party; and
(b)it considers the undertaking to be an appropriate regulatory outcome having regard to the significance of the issues concerned to the market and community.
8.Other factors which ASIC will consider when deciding whether accepting an enforceable undertaking is an appropriate regulatory outcome, include:
(a)whether a person is likely to comply with it (any history of complaints involving the Promisor may be relevant);
(b)whether a person is prepared to acknowledge that ASIC has reason to be concerned about the alleged breach;
(c)the nature of the alleged breach and the regulatory impact of the undertaking compared to that of the other forms of enforcement remedy; and
(d)the prospects for an expeditious resolution of the matter.
9.…
10.ASIC is also responsible for monitoring licensees for ongoing compliance with their licence and other legal obligation. This involves, among other things, influencing the behaviour of licensees, with the aim of promoting compliance with the law and raising the ethical standards of business conduct. …
(a)…
(b)…
(c)… ASIC will use the remedy, or combination of remedies, that best achieves compliance with the law and raising the ethical standards of business conduct.
11.…
12.… we may in particular instances consider an enforceable undertaking as a more effective and flexible outcome. However, an undertaking offering a lesser penalty than a banning may not provide an appropriate regulatory outcome and ASIC may regard a banning order to be a more appropriate regulatory outcome as:
(a)ASIC maintains a public register where consumers and investors can find information about persons who have been banned by ASIC;.
(b)a banning order clearly expresses ASIC’s view of the nature and extent of the misconduct; and
(c)breach of a banning order is a criminal offence under section 920C of the Corporations Act, (this is not the case with a breach of an enforceable undertaking).
13.The Financial Services Licensing Regime is intended to ensure that consumers can feel confident when dealing with persons (or those who act on their behalf) who are licensed to provide financial services or products, because such providers are subject to the legal obligations that attach to their licensee status.
…
17.Banning for periods of three years or less are for less culpable misconduct, generally, where there has been little or no loss to consumers and where there is not prior history of misconduct. …
18.... an enforceable undertaking … would not be an appropriate regulatory outcome having regard to the significance of the issues concerned to the market and community. …”
Ms Redfern was thus clearly of the view that an enforceable undertaking was not appropriate in the case of the Applicant. It would have been applicable if the person were still employed and a supervisor available. In the case of the Applicant he had simply not, in relation to the nine files, followed or complied with his training, supervision and monitoring. He had not complied with the law. Ms Redfern did not know why this was so but it was not by reason of a lack of knowledge or awareness. It most probably was, she surmised, on account of his enthusiasm to assist clients and develop a personal clients base even be it the evidence showed a failure on his part to identify the needs of the client; or at the least, an absence of documentary evidence of this awareness.
Mr Robert Drake, an acting Assistant Director of ASIC, was asked to comment on matters relating to an appropriate outcome consequent upon the conduct of the Applicant. He noted the findings of the Respondent as now accepted by the Applicant. As to the giving of advice without a reasonable basis (section 945A) Mr Drake said that this included not properly researching the client’s circumstances and needs, and not properly researching the client’s existing funds. Without the proper research and consideration according to Mr Drake, the Applicant was not in a position to know whether the advice would be appropriate to his clients. The opinion expressed by Mr Drake might or might not reflect what the actual situation was. Whatever the answer may be, there was not any evidence of the Applicant carrying out the tasks identified by Mr Drake.
As to the provision of Statements of Advice (section 946C), Mr Drake stated that it is a fundamental principle in the Act that a client should have the benefit of advice in writing as soon as possible, but in any event, before any further services are provided, such as implementation of the advice. The obligation exists to ensure consumers are able to make a dispassionate, informed decision about important financial matters. As earlier indicated the Respondent’s findings include examples where Statements of Advice were either not provided at all or provided well after the advice had already been implemented.
As to the failure to disclose the benefits, if any, a client would lose as a result of switching funds (sections 947D), Mr Drake stated that the Respondent concluded that the Applicant did not adequately research the client’s current circumstances and did not adequately research the client’s current super funds. Generally, he expressed the opinion that the giving of advice without a reasonable basis and the breaches, suggest that the Applicant was either unable or unwilling to give sufficient focus to client interests and his legal obligations. The Tribunal does not agree with Mr Drake in this connection and sees another explanation available to it, namely that the Applicant wrongly considered it unnecessary in respect of these particular clients to comply with the strict procedures resting upon a financial planner. It was not a matter of his being unable or unwilling, but rather his not seeing it as necessary. In this regard he was wrong.
To be sure Mr Drake did say that he was not aware of any breaches by the Applicant after November 2004 even though he remained employed by Macquarie Bank until December 2005.
The abovementioned breaches are to be viewed very seriously as evidenced by the provisions of the Financial Services Reform Act 2002, ASIC Policy Statement 175 and ASIC media releases in 2003 and 2004.
The Applicant was aware or should have been aware of the position taken in this regard by the Respondent. As it was put by Ms Redfern this situation does not evidence system failure but individual neglect. It is thus necessary to ensure that the public is not in the future exposed to unreasonable advice.
Ms Redfern felt that it was important for the Applicant to have a period of time out of the industry in which to reflect upon his position. Anything under a one-year ban would not, she said, be sufficient.
As submitted on behalf of the Respondent the relevant factors to be considered in the making of a banning order are those outlined in Re HIH Insurance Limited (in provisional liquidation); ASIC v Adler (2002) 42 ACSR 80 at 97-99. A banning order has a motive of personal deterrence as well as a general deterrence; the purpose and intent being to acknowledge the importance of upholding public confidence in the licensing of persons to provide financial advice to consumers. It is to be noted that a banning order may be appropriate even in circumstances where it is not shown that there is reason to believe that the person will not comply with a financial services law in the future. It is not solely the issue of whether a person now is or in the future will be a fit and proper person, as a banning order may be appropriate solely for reasons of consumer confidence in the system based as abovementioned on personal and general deterrence. As said, this is the position in the present application.
The Tribunal does not make a finding adverse to the Applicant referable to the future. It is conscious of his sincerity in acknowledging the self-inflicted harm that has been caused to his professional standing and the negative impact it has had upon his ability to maintain the role of an investment services provider. It is in the context of deterrence that the Tribunal is minded to make or consider the making of a banning order.
the effect of a banning order or enforceable undertaking on the Applicant
As the Applicant himself instanced in his statement (Exhibit A, paras 33-37), since resigning from Macquarie Bank he has applied for a number of positions. On companies finding out about the banning order there has been a reticence on their part to employ him. It was not until July 2006 that he commenced working as an Adviser Services Consultant working on an average 30 hours per week.
Ms Houterman in her report (Exhibit 4, pp15-16) stated, as earlier indicated, that whilst a three-year ban may seem a harsh penalty it is the risks to the industry and to consumers when inappropriate advice is given that may warrant this length of the ban. The Tribunal however, being satisfied that the Applicant will not again engage in conduct the like of that which attracted the attention of the Respondent, considers that the contraventions may not warrant a ban the length of that noted by Ms Houterman.
Mr Fleming is of the opinion that in the event of a banning order against the Applicant remaining in place, his prospects of obtaining a position in the financial services industry is extremely poor.
Ms Houterman on the other hand said that if the Applicant changes his attitude and manner of conducting business, then there was no reason why he should not return to the financial services industry as an adviser. But, having in mind the “extraordinarily deficient” nature of the files, the preferred view would appear to have been that he should never work in the financial industry again. This view may well depend upon a decision as to why the files were so deficient. The Tribunal has earlier indicated its finding in this regard. In any event, she was not sure that an enforceable undertaking would be practicable as its effectiveness would be dependent upon one-on-one monitoring. She also felt that it would not be appropriate as a deterrent.
discussion and decision
In his evidence Mr Drake stated that there are factors that are fundamental to financial planning. They include finding out the client’s circumstances and getting to know the client. There is then a need to research the products relevant to the advice that is to be given. Advice appropriate to the client is to be offered and the relevant product is to be effectively communicated. Any detriment to the client that may eventuate is to be brought to the client’s notice. Finally, there is to be a relevant review. The statutory provisions embrace or codify these fundamental requirements and require there to be effective evidence of them having been the subject of appropriate attention. The Applicant failed in the latter respect.
The Tribunal is satisfied that the breaches committed by the Applicant were not the result of lack of training or general lack of knowledge on his part. He committed the breaches partly out of misguided enthusiasm to assist the clients and to develop a client base of his own. They may well have also been committed, as Mr Drake suggests, because of an inability or unwillingness on his part to focus on the statutory requirements. There was also, as Ms Houterman states, a lack of care and professional consideration. The latter of course implies compliance with statutory requirements.
As submitted on behalf of the Applicant by Mr Goldsmith, the Tribunal is to look at the relevant circumstances and apply those circumstances to the abovementioned policy guidelines. The latter of course are guidelines and are not statutory provisions. As earlier indicated, the Tribunal does not accept that the past transgressions of the Applicant are such as to warrant an adverse finding being made as to the future. Further, the Tribunal is satisfied as to the factors that led to the Applicant’s contraventions and is further satisfied that they were of such seriousness as to necessitate a banning order being made. As to the period of the banning order, that is another matter. The guidelines indicate the factors that are relevant to a banning order of less than three years. Ms Redfern made mention of a banning order for 12 months. Being mindful of the effect the banning order has already had upon the Applicant the Tribunal is satisfied that a banning order of three years was excessive.
On behalf of the Respondent Mr Clarke instanced the nature of the various contraventions and their seriousness. As already indicated in these reasons the Tribunal does not make a finding as to whether the Applicant did or did not carry out various investigations or whether he was or was not already aware of the relevant facts. The situation is that he did not carry out the obligations resting upon him as a financial adviser. There was no basis shown for the advices that were given. The Tribunal does not accept that there is reason to expect that the Applicant will fail to provide appropriate advice in the future. The Tribunal agrees with the submission made on behalf of the Respondent that the circumstances of the case indicate that the Applicant did lack a basic understanding or awareness of his legal and professional obligations as an adviser to all of his clients, not only to those primarily unknown to him, at the time of the misconduct. He did fail to discharge his obligations.
It is acknowledged that the provisions contained in the legislation are but a codification of fundamental principals in respect of financial planning. And it is fair to say that the Applicant’s failures represent an absence of awareness of the need on his part to comply in all instances with these fundamental principles of financial planning.
I do not accept, as maintained by the Respondent, that the Applicant continues to show a failure to recognise this improper conduct and its seriousness. Any reticence on his part relates only as to the future. He contends that there is not a risk of his breaching the corporations law if he is able to return to his work in the securities industry. The Tribunal likewise does not accept that the Applicant is other than very conscious of his faulty behaviour. He has admitted to the breaches earlier identified in these reasons. He has expressed an awareness of the errors that were made even be it that they were at the time thought by him to be appropriate in the circumstances. He was not ignorant of the thrust of the statutory provisions even if he was not familiar with the numbering of the sections and the specific provisions in the legislation.
The Respondent suggests that the Applicant has sought in his Statement of Reply (Exhibit B) to lay blame upon others, his client, his supervisor, his advisor and his employer. I do not see this as being so. It is more a matter of stating the circumstances as they existed at the particular time. He does not recant from his admissions as to personal failure.
I am satisfied as already stated that a banning order is appropriate. I do not accept that there is reason to believe that the Applicant will not comply with the financial services law if he be permitted to again practice his profession.
It is fair to say as does the Respondent that a banning order if for anything less than 12 months would fail to pay due regard to the seriousness of the conduct. It would also not identify the need for a personal and a general deterrent message to be sent emphasising the need to maintain public and client confidence in the system whereby financial advisers are licensed and supervised. However I do not accept that the Applicant fails to recognise the responsibilities that he would assume if allowed to re-enter the industry. As noted by Ms Houterman (Exhibit 4, p11) the deficiencies in the Applicant’s work “are not reflective of ignorance but rather of haste and lack of care and professional consideration”. The experience gained by him from the present proceedings and its antecedents are such as to ensure that their salutary effect will remain and that when he gives financial planning advice in the future it will be “appropriate and complying” (Exhibit B, p15). I consider that a banning order with a currency of twelve months is appropriate in the context of this application. Even be it I see there is little risk as to the future, the nature of the conduct was such as to, in my opinion, preclude an enforceable undertaking being sufficient deterrent. It would be an inappropriate regulatory outcome.
An undertaking pays little regard, as I see it, to the importance of personal and general deterrence when maintaining confidence in the securities industry and the structure established for its maintenance. I agree with the submission made in this regard on behalf of the Respondent namely “when a person is licensed as an authorised representative ASIC effectively endorses that person to the public as reliable, and a person in whom consumers can place trust and confidence. ASIC reviews this public aspect of the role as a serious matter relevant to the confidence of the market and consumers generally. Being an authorised representative is a privilege not a right involving dealings with other people’s money. The obligations are personal ones under the Act. A voluntary enforceable undertaking fails to carry with it the suggestion that ASIC has found something wanting in the person’s performance.”
Such an undertaking would usually be in the circumstances where an employer is able to provide supervision of the person who provides the undertaking. ASIC supervises licensees but it is the licensee who is to supervise a representative. ASIC itself cannot be expected to maintain a mechanism or utilise resources for the ongoing monitoring of individual representatives.
For the reasons stated above the decision under review is set aside. In lieu of such decision the Applicant should be issued a banning order that prohibits him from providing financial services for a period of one year commencing on 6 February 2006.
I certify that the 75 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis AM QC, Deputy President
Signed: …………….[Emily Gadsby].................
Associate
Date/s of Hearing 17 August, 6 September, 8 November &
9 November 2006
Date of Decision 20 December 2006
Solicitor for the Applicant Mr Barrie Goldsmith
Counsel for the Respondent Mr Jeremy Clark
Solicitor for the Respondent Ms Sarah Le Breton & Ms Sue Williams
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