Determination of the Disciplinary Tribunal of Chartered Accountants Australia and New Zealand 16 September 2016

Transcription

1 Determination of the Disciplinary Tribunal of Chartered Accountants Australia and New Zealand 16 September 2016 Case Number: D-1135 Member: Richard John Wade CA Hearing Date: 16 September 2016 Tribunal: Legal Adviser: Counsel: Case description: David Fairlie (Chair) Bruce Glanville FCA Richard Rassi FCA Lauren Stewart John Coorey for the Professional Conduct Committee (PCC) Carl Paterson Finch for the Member 1. Member pleaded guilty to criminal offences in contravention of section 1041A of the Corporation Act 2001 (Cth). 2. Member was subject of adverse findings in relation to his professional or business conduct or competency. 3. Member has committed an act, omission or default which brings, or is likely to bring, discredit upon himself, Chartered Accountants Australia and New Zealand and the profession of accountancy. 33 Erskine Street, Sydney NSW 2000 GPO Box 9985, Sydney NSW 2001, Australia T charteredaccountantsanz.com Chartered Accountants Australia and New Zealand ABN (CA ANZ). Formed in Australia. Members of CA ANZ are not liable for the debts and liabilities of CA ANZ.

2 1. NEW BY-LAWS These proceedings were conducted under the new By-Laws of Chartered Accountants ANZ which came into force on 28 July By virtue of By-Law 42 the Tribunal is empowered to deal with the matter although commenced under the Former Professional Conduct By-Laws. 2. DECISIONS 2.1 DECISION ABOUT THE PCC S ALLEGATIONS WHICH ARE SET OUT IN FULL IN SCHEDULE 1 At a hearing of the Disciplinary Tribunal the Member admitted allegations 1, 2 and 3 and the Tribunal found them to be established. 2.2 DECISION ABOUT SANCTIONS The Tribunal considers that the appropriate sanction is that the Member receive a severe reprimand. 2.3 DECISION ABOUT COSTS SANCTION The Tribunal determines that the Member pay to Chartered Accountants ANZ the sum of $5,000 towards the costs and expenses of the hearing (paragraph 10.12(l) of By-Law 40). No GST is payable. The Tribunal considers this to be fair and reasonable in all the circumstances. 2.4 DECISION ABOUT PUBLICATION This decision will not take effect while the Member remains entitled to appeal. The Tribunal will publish its decision, mentioning the Member s name and locality, on the website and in the journal of Chartered Accountants ANZ (paragraphs 12.3 and 12.4 of By- Law 40). 2.5 NOTIFICATION TO OTHER BODIES The Member holds registration and/or membership with the National Tax & Accountants Association, which will be notified of this decision. 3. RIGHT OF APPEAL The Member may, within 21 days after the provision of the Tribunal s written decision with reasons, appeal in writing to the Appeals Tribunal of Chartered Accountants ANZ against the decision (paragraph 11.1 of By-Law 40). The PCC may, within 21 days after the provision of the Tribunal s written decision with reasons, appeal in writing to the Appeals Tribunal of Chartered Accountants ANZ against the decision (paragraph 11.2 of By-Law 40). Whilst the right of appeal remains open, or while any such appeal awaits determination by the Appeals Tribunal, the following decisions shall not take effect: Decision about the PCC s allegations Page 2 of 6

3 Decision about sanctions Decision about costs sanction. 4., REASONS FOR DECISION The Member admitted allegations 1, 2 and 3 and having considered the evidence before it, Tribunal is satisfied that the allegations are established. the 5. REASONS FOR SANCTIONS The PCC submitted that: the Member pleaded guilty to criminal offences which were matters of some seriousness though not at the higher end of the scale; exclusion from membership was within the range of appropriate sanctions, however the recommendation was for a severe reprimand. The PCC recognised that: no client or member of the public lost any monies; the Member cooperated with ASIC and Chartered Accountants ANZ; the extent of manipulation of the market was not significant; the offences were not committed in the Member's capacity as an accountant and therefore remedial education was not an appropriate sanction. The Member submitted that: although the offences were serious, they were not systemic; the Member was not the architect or designer of the scheme giving rise to the offences; the Member was new to his job, his involvement was for a friend, and not financially motivated; the Member cooperated with ASIC; the Member pleaded guilty at the first opportunity; the Member had already been punished by ASIC and through the court proceedings; the offences had occurred nearly ten years ago and the delay in bringing the matter to the Tribunal was not the fault of the member or Chartered Accountants ANZ; a severe reprimand would be an appropriate sanction. On the basis of the above submissions of the Member, together with those of the PCC, the Tribunal is satisfied that a severe reprimand is the appropriate sanction. Chair Disciplinary Page 3 of 6

4 SCHEDULE 1 - THE PCC S ALLEGATIONS It is alleged that while a member of Chartered Accountants Australia and New Zealand the Member is liable to disciplinary action in accordance with: 1. Former Professional Conduct By-Law* 40(b) in that on or about 10 November 2008, the Member pleaded guilty to criminal offences including but not limited to contraventions of section 1041A of the Corporations Act 2001 (Cth) which have not been set aside on appeal. 2. Former Professional Conduct By-Law* 40(e) in that the Member has been the subject of adverse findings in relation to his professional or business conduct or competency, in connection with the Member s failure to comply with a financial services law by engaging in market manipulation while working as an authorised representative with ABN AMRO Morgans Ltd, which resulted in the Australian Securities and Investment Commission (ASIC) banning the Member from providing financial services for five years. 3. Former Professional Conduct By-Law* 40(j) in that the acts, omissions and defaults as set out in paragraphs 1 and/or 2 above bring, or are likely to bring, discredit on the Member, Chartered Accountants ANZ and/or the profession of accountancy. *As defined in By-Law 42 Page 4 of 6

5 SCHEDULE 2 - RELEVANT BY-LAWS Former Professional Conduct By-Laws 40. A Member, Non-Member Practice Entity or Provisional Member shall be liable to disciplinary action in any of the following events, whether occurring before or after the coming into operation of these By-laws: (b) if he, she or it has, before any court of law in any jurisdiction in Australia or elsewhere pleaded guilty to, or been found guilty of, any criminal offence which has not been set aside on appeal; (e) if he, she or it has been the subject of an adverse finding in relation to his, her or its professional or business conduct or competence by any court of law, professional body, royal commission, statutory authority, regulatory authority, statutory body, commission or inquiry in any jurisdiction in Australia or elsewhere; (j) if he, she or it has committed any act, omission or default which, in the opinion of either of the Tribunals referred to in By-law 41 brings, or is likely to bring, discredit upon himself, herself or itself, the Institute or the profession of accountancy. 41 (a) For the implementation of the procedures referred to in this Section, there shall be the following Tribunals: (i) (ii) a Professional Conduct Tribunal appointed by the Board as hereinafter provided; and an Appeal Tribunal appointed by the Board as hereinafter provided. By-Laws 40. Except as provided by By-Law 41, the By-Laws in this Section 5, including the following paragraphs of this By-Law 40, do not apply to Members who are also members of NZICA in respect of disciplinary matters over which NZICA has jurisdiction and which relate to the practice of the profession of accountancy by NZICA s members in New Zealand. Nothing in this By-Law 40 excludes from the operation of this Section 5, conduct of a Member: (a) (b) who was, but is no longer, a member of NZICA; or who has subsequently also become a member of NZICA. Except as provided by By-Law 41, no Member shall be sanctioned under both this Section 5 and NZICA Rule 13 in respect of the same conduct. 2 Disciplinary action 2.1 A Member is liable to disciplinary sanctions under these By-Laws if (whether before or after the date of adoption of this By-Law) that Member: (b) has, before any court of law in any jurisdiction in Australia or elsewhere pleaded guilty to, or been found guilty of, any criminal offence which has not been set aside on appeal; (e) has been the subject of an adverse or unfavourable finding in relation to that Member's professional or business conduct, competence or integrity by any court of law, Page 5 of 6

6 professional body, royal commission, statutory authority, regulatory authority, statutory body, commission or inquiry in any jurisdiction in Australia or elsewhere; (k) has committed any act, omission or default which, in the opinion of the Professional Conduct Committee, Disciplinary Tribunal or Appeals Tribunal brings, or may bring, discredit upon that Member, CA ANZ or the profession of accountancy; or Page 6 of 6