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

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 206
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2004/1216

GENERAL ADMINISTRATIVE DIVISION )

Re MR DAVID SLEE

Applicant

And

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY

Respondent

DECISION

Tribunal The Hon RNJ Purvis AM QC, Deputy President
Ms G Ettinger, Senior Member

Date 6 March 2006
PlaceSydney

Decision The Tribunal affirms the decision under review and releases the decision in full without suppressing the names of any parties.
…………………………………
Presiding: The Hon RNJ Purvis AM QC
Deputy President

INDEX OF DECISION
The Application  3
Hearing  8
Terminology  12
Role of an actuary in relation to OCL and OCP  13
Retainer of the Applicant by the company  17
Relevance of PS300 to the Applicant’s work  20
The Company, Its Collapse and The Royal Commission  23
Relevance and Applicability of GPS220  22
The June 2000 Report  24
Conduct of the Applicant under Code of Conduct and PS300  25
PART 1A - Applicant supported figure that was not a central estimate of OCL                 28
PART 1B - Inappropriate use of actuarial techniques & inadequate data      34
PART 1C - Errors and Omissions  41
PART 2 - Extent of compliance / non - compliance with PS300  42
PART 3 - Omission of prescribed material from reports  43
PART 4 - Reports relating to the accuracy of data  44
PART 5 - Reports not stating clearly the assumptions and methods used  45
PART 6 - Aspects of PS300 and the implications of divergence from PS300  45
PART 7 - Advising on the OCL not conforming with the steps provided in PS300             46
Disqualification Power and Decision  47
CATCHWORDS
INSURANCE – whether Applicant should be disqualified from holding appointment as an actuary of a general insurer – disqualification by reason of the actuarial work carried out and based on a number of findings and factors – primary contention by Respondent that Applicant has not demonstrated competence in the conduct of business duties and has not demonstrated professional standards – consideration of the Code of Conduct for Actuaries and Professional Standard 300 – application concerned with the conduct of the Applicant in the June 1999, December 1999 and June 2000 financial periods – application of relevant legislation, being the Insurance Act 1973 – consideration of the disqualification power as a protective measure to safeguard the public – Tribunal affirms the decision under review and releases the decision in full without suppressing the names of any parties.
Insurance Act 1973 – sections 44 and 63
Administrative Appeals Tribunal Act 1975 – section 35
Australian Prudential Authority Act 1998
The Code of Conduct for Actuaries
Professional Standard 300
National Companies and Securities Commission v Bankers Trust Australia Ltd (1989) 24 FCR 217
Brown v Federal Commissioner of Taxation [2001] FCA 276
Kamha v Australian Prudential Regulation Authority [2005] FCA 480
REASONS FOR DECISION

6 March 2006 The Hon RNJ Purvis AM QC, Deputy President

Ms G Ettinger, Senior Member
the application
1. On 8 September 2004 a delegate of the Australian Prudential…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] AATA 206
Decision Date: 6 March 2006

CaseChat Overview and Summary

The case of Re Slee and Australian Prudential Regulation Authority involved the Applicant, Slee, and the Respondent, the Australian Prudential Regulation Authority. The central dispute centred on whether Slee should be disqualified from holding an appointment as an actuary of a general insurer, specifically due to concerns about the actuarial work conducted by Slee and various findings against him. This matter was brought before the Administrative Appeals Tribunal to resolve the contentions raised by the Respondent, who argued that Slee had not demonstrated the required competence and professional standards in his actuarial duties.

The legal issues before the Tribunal involved interpreting the provisions of the Insurance Act 1973, specifically sections 44 and 63, and determining whether the Respondent had grounds to disqualify Slee from his position. Additionally, the Tribunal had to consider the relevance of the Code of Conduct for Actuaries and Professional Standard 300 in assessing Slee’s professional conduct. The Tribunal needed to weigh the evidence and arguments presented by both parties to ascertain whether Slee’s conduct warranted disqualification under the protective measures intended to safeguard the public interest.

In its decision, the Tribunal examined the actuarial work conducted by Slee during the June 1999, December 1999, and June 2000 financial periods, as well as the findings against him. The Tribunal affirmed the decision under review, upholding the Respondent’s decision to disqualify Slee. The Tribunal concluded that Slee had not demonstrated the necessary competence and professional standards expected of an actuary in the context of the Insurance Act. Consequently, the Tribunal released the decision in full, without suppressing the names of any parties involved. This decision underscores the importance of maintaining high professional standards within the actuarial profession to protect public interests.

Orders

Orders of the court

The Tribunal affirms the decision under review and releases the decision in full without suppressing the names of any parties.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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6 March 2006	The Hon RNJ Purvis AM QC, Deputy President
Ms G Ettinger, Senior Member