BEFORE THE APPEALS COUNCIL OF THE NEW ZEALAND INSTITUTE OF CHARTERED ACCOUNTANTS

BEFORE THE APPEALS COUNCIL OF THE NEW ZEALAND INSTITUTE OF CHARTERED ACCOUNTANTS IN THE MATTER OF a n appeal against a determination of the Disciplinary Tribunal of the New Zealand Institute of Chartered Accountants dated 9 December 2013 BETWEEN C O L I N BRETT WHYTE of Wellington Appellant A N D T H E PROFESSIONAL CONDUCT COMMITTEE OF THE NEW ZEALAND INSTITUTE OF CHARTERED ACCOUNTANTS DECISION OF APPEALS COUNCIL Dated 8 April 2014 Members of Appeals Council Les Taylor QC Sue Sheldon Paul Armstrong

Introduction 1. This matter relates to a request by the Member to appeal part of a decision of the Disciplinary Tribunal in which it declined the Member's application for non-publication of his name and details of the decision. The decision to decline the Mennber's request for non-publication and to order publication was made by the Disciplinary Tribunal pursuant to Rule 21.35 of the Rules of the New Zealand Institute of Chartered Accountants ("the Rules"). 2. For reasons discussed below the appeal raises significant (and apparently novel) issues as to the jurisdiction of the Appeals Council to hear the appeal. That is because the appeal, due to an unfortunate administrative error, was not lodged until after the 14 day period prescribed in Rule 21.41 of the Rules. 3. I n this decision we deal first with the issue of jurisdiction of the Appeals Council to hear the appeal and then go on to consider the merits of the appeal. Jurisdiction to hear the appeal 4. When this appeal was instigated leave was sought to extend the time for appealing which is provided for in Rule 21.41 of the Rules. Rule 21.41 provides: Within 14 days after the date of notification of a decision of the Disciplinary Tribunal made under Rule 21.31, a member or the Professional Conduct Committee may appeal in writing stating the grounds of the appeal to the Appeals Council. 5. There is no dispute that the appeal in this case was filed well outside the 14 day period provided for in Rule 21.41. That was due to an administrative error on the part of the solicitors for the Member who directed the written notice of appeal to the wrong email address. That was clearly an administrative error which was not picked up until the New Year by which time publication of the decision of the Disciplinary Tribunal had been made. 6. The Appeals Council, if it had jurisdiction to extend the time for appeal provided for in Rule 21.41, would in the circumstances have granted an extension of time. However, for reasons provided to the parties, the Chairman of the Appeals Council expressed doubt as to whether there was jurisdiction to grant leave to extend time. 7. There is no provision in the Rules granting the Appeals Council power to extend time for filing of an appeal under Rule 21.41 and no inherent jurisdiction to do so. The preponderance of authority suggests that, in those circumstances, a body such as the Appeals Council has no jurisdiction to extend the time period for appeal. 8. A t the hearing of this appeal counsel for the Member, Mr Thompson, did not pursue the application for an extension of time for filing of the appeal. He accepted that, if Rule 21.41 applies to this appeal, there is no power to extend time for filing the appeal.

9. M r Thompson submitted, however, that Rule 21.41 did not apply to the appeal in this case. The appeal in this case is confined to the decision of the Disciplinary Tribunal under Rule 21.35 declining the Member's request to suppress publication of its decision. 10. That decision, Mr Thompson argued, was not caught by Rule 21.41 and therefore the 14 day time limit for filing an appeal did not apply (and there was no need to seek an extension of time because time for filing an appeal was at large). Mr Thompson seemed to accept, however, that even though there was no time limit for an appeal in this case, such an appeal would have to be brought within a reasonable time. 11. Notwithstanding the absence, on his interpretation of Rule 21.41, of an express power to appeal the decision not to prohibit or limit publication, Mr Thompson submitted that there was nonetheless power to hear the appeal. He submitted that, in the absence of an express provision conferring a right of appeal, there was a general power of the Council to hear appeals from decisions of the Disciplinary Tribunal. 12. Mr Thompson submitted that the power to hear this appeal was derived from section 6 of the New Zealand Institute of Chartered Accountants Act 1996 ("the Act"), Appendix VI to the Act, Rule 11.2 of the Rules and the Terms of Reference of the Appeals Council. The argument put forward by counsel for the Member was that Rule 21.41, which imposes the 14 day time limit for an appeal to which that rule applies, was confined to decisions made under Rule 21.31 and had no application to other decisions such as the decision of the Disciplinary Tribunal in this case (under Rule 21.35) declining an application by the Member to prohibit publication. 13. Rule 21.31 relevantly provides: Where the Disciplinary Tribunal finds a member guilty of a charge it may exercise one or more of the following powers: The Rule then, in sub paragraphs (a) to (o), goes on to provide various disciplinary powers such as removal of the Member's name from the Institute's Register, censure and imposition of a monetary penalty. 14. Mr Thompson submitted that Rule 21.31 was concerned only with penalties following a member being found guilty. He submitted that, as Rule 21.31 was concerned only with exercise of powers relating to penalty, it had no application to the current appeal because there was no appeal against the penalty imposed by the Disciplinary Tribunal or, for that matter, an appeal against being found guilty. On the contrary the member had admitted the charges against him except for one particular of the charges which was disputed and which the Disciplinary Tribunal ultimately found not to be proven. 15. When asked by the Chairman where the power of the Appeals Council to hear appeals from decisions which were not within the scope of Rule 21.41 was derived his submission was, in summary, as follows: 3

(i) Section 6(h) of the New Zealand Institute of Chartered Accountants Act 1996 provided for rules of the Institute to be made for; An Appeals Council to hear appeals from decisions of the Disciplinary Tribunal and the powers and procedure of that Council; (ii) Under Rule 11.1 of the Rules there was power for the Board of the Institute to appoint members of the Statutory Bodies and Committees specified in Appendix VI and that under Rule 11.2 the Board was required to approve from time to time Terms of Reference for each Statutory Body of which the Appeals Council was one. (iii) Appendix VI relevantly provides, at clause 2(b), that the Board shall approve from time to time for each Permanent Body (of which the Appeals Council is one) Terms of Reference that include some or all of the following: (b) The purpose, functions, powers (in the case of a Statutory Body or Committee only), operating policies/procedures and reporting obligations of the Permanent Body. (iv) The Terms of Reference relating to the Appeals Council relevantly provide: 1.0 This Terms of Reference sets out the roles, functions, policies and procedures applicable to NZICA's Appeals Council. The Appeals Council will operate in accordance with this Terms of Reference, NZICA's Rules and the new Zealand Institute of Chartered Accountants Act 1996. 2.1 The appointment of the Appeals Council as a Permanent Body 2.2 The role of the Appeals Council is to hear appeals from members of the Professional Conduct Committee against decisions of the Disciplinary Tribunal. The Appeals Council will convene to hear such appeals. 16. The Terms of Reference then go on to deal with various matters such as the composition of the Appeals Council, the rules which are applicable to the Appeals Council (clause 2.4), the Appeals Council member responsibilities (clause 2.8) and other matters relating to the functioning and procedures of the Appeals Council. 17. As we understood the argument, the proposition is that the Appeals Council is a statutory body which derives its existence from the statute and that the Terms of Reference, in particular clause 2.2, confer wide powers on the Council to hear appeals from any decisions of the Disciplinary Tribunal. Mr Thompson acknowledged, however, that this general power to hear appeals from decisions of the Disciplinary Tribunal could not be used to override the express provisions of the Rules. 18. The submission was that, where there was no express provision in the Rules, the Terms of Reference (which are in turn derived from powers conferred under the Act) provided the statutory basis for a general power to hear appeals from decisions of the Disciplinary Tribunal. 4

19. Counsel for the Professional Conduct Committee ("PCC"), Mr Moon, said that he was in general agreement with the submissions by counsel for the Member. He submitted that, to the extent that the Member's argument was that the Appeals Council had power to hear appeals which was wider than the express power to hear appeals under Rule 21.41, he accepted that the Appeals Council did have a wider power to hear appeals. Mr Moon submitted that decisions, such as decisions made by the Disciplinary Tribunal under Rule 21.35 (declining to prohibit or limit publication) or, perhaps more importantly, decisions under Rule 21.36 (which confers powers on the Disciplinary Tribunal to order publication when a Member is found not guilty) were not caught by rule 21.41 but were nonetheless appealable (presumably by either the Member or the PCC) and were within the jurisdiction of the Appeals Council to determine. 20. Mr Moon submitted that it was not necessary for us to consider, for instance, whether an appeal against a not guilty decision was appealable (although the logic of his argument would suggest that it would be). Mr Moon also seemed to accept the argument of counsel for the Member that the power of the Appeals Council to hear appeals from decisions outside the scope of Rule 21.41 was derived from the Terms of Reference and the provisions of the Rules and the Act which give rise to the Terms of Reference. Discussion 21. We state at the outset that interpretation of Rule 21.41, which is expressly limited to decisions of the Disciplinary Tribunal made "under Rule 21.31,"creates some uncertainty as to what decisions of the Disciplinary Tribunal are intended to be appealable. We consider that the Rules would benefit from amendment so as to make it clear what decisions of the Disciplinary Tribunal are intended to be appealable. We also consider that it would be desirable, in light of the issues that have arisen (apparently for the first time) in this case, that the Rules be amended to include an express power to extend the time for filing an appeal. 22. For the reasons expressed below, however, we do not consider that the Appeals Council has a general power to hear appeals. The Appeal Council only has power to hear appeals where there is an express right to appeal contained in the Rules and where an appeal is brought within the time period expressly provided for in the Rules. 23. Notwithstanding the careful submissions by counsel for the Member, Mr Thompson, and to a large extent the endorsement of those submissions by counsel for the PCC, we do not accept that the Terms of Reference confer a broad and general power on the Appeals Council to hear appeals from any decision of the Disciplinary Tribunal. Nor do we accept that, in the absence of an express right of appeal, the Appeals Council can decide for itself the time within which an appeal may be brought where there is no express provision in the Rules conferring a right to make such an appeal. 5

24. Section 6(h) of the Act does no more than impose an obligation (and confer a power) on the Institute to make Rules for an Appeals Council to hear appeals from decisions of the Disciplinary Tribunal and "the powers and procedure of that Council". Rule 11.2 of the Rules simply requires the Board to approve the Terms of Reference for each Statutory Body specified in Appendix VI of the Act. There is no dispute that the Appeals Council is such a Statutory Body. Rule 11.2 also provides that: Subject to the relevant Terms of Reference, each Statutory Body and Committee shall regulate its own affairs and may delegate any of its functions or powers. 25. We do not consider that this broad provision entitles the Appeals Council to determine for itself what, if any, decisions of the Disciplinary Tribunal are appealable. The reference to a Statutory Body being able to "regulate its own affairs" and delegate any of its functions or powers does not confer, and is not intended to confer, a general power to determine for itself which decisions of the Disciplinary Tribunal are appealable. 26. The powers of the Appeals Council to hear appeals are limited to appeals for which an express right of appeal is conferred under the Rules and which are brought within the time specified for the making of any such appeal. In short, we consider that the jurisdiction of the Appeals Council to hear appeals is limited, by the Rules, to appeals that are within the scope of Rules 21.22 and 21.41. We do not consider that the Terms of Reference approved in respect of the Appeals Council confer a power to hear appeals which are outside the scope of Rules 21.22 or 21.41. 27. Clause 2.1 of the Terms of Reference simply confirm the appointment of the Appeals Council as a Permanent Body of NZICA under Rule 11. Clause 2.2 of the Terms of Reference, which was heavily relied upon by counsel for the Member as conferring a general jurisdiction to hear appeals against "decisions" of the Disciplinary Tribunal does not confer any such power. 28. Clause 2.2, as its heading suggests, simply states the role of the Appeals Council as being "to hear appeals from members of the Professional Conduct Committee against decisions of the Disciplinary Tribunal." Whilst that is clearly a general and accurate description of the role of the Appeals Council it does not, in itself, confer powers on the Appeals Council to determine for itself what decisions of the Disciplinary Tribunal may be appealed and determined by the Appeals Council. 29. The powers of the Appeals Council to hear and determine appeals are confined to powers conferred under Rule 21 of the Rules and in particular Rules 21.22 and 21.41. The Terms of 6

Reference do not, in describing the role of the Appeals Council, confer a broad power on the Council to hear appeals which fall outside the scope of Rules 21.22 or 21.41. 30. Our conclusion in that regard is reinforced by the provisions of Rules 21.20-21.22 (which were helpfully referred to us by Mr Moon) and which deal with the powers of the Disciplinary Tribunal to suspend a member from membership of the Institute where a complaint has been lodged with the PCC. We note that under Rule 21.22 express provision is made for a Member to appeal against a refusal of the Disciplinary Tribunal to revoke a suspension order or an order directing publication of the suspension under Rule 21.21. It is notable that in that instance only the member has a right of appeal which must be made within 14 days of receiving notice of the decision of the Disciplinary Tribunal. 31. The only other Rule which confers an express right of appeal is Rule 21.41 the terms of which are quoted above. 32. The difficulty which this appeal has raised is that Rule 21.41 is expressly limited to decisions of the Disciplinary Tribunal made under Rule 21.31. Counsel for the Member's submission is that Rule 21.31 is very limited in its scope and is confined to appeals from the exercise of the disciplinary powers provided for in sub-paragraphs (a)-(o) of Rule 21.31. 33. Counsel submitted, for instance, that a finding of guilt is made under Rule 21.30 rather than Rule 21.31 and that therefore an appeal from a finding that the Member was guilty of a charge would not be an appeal within the scope of Rule 21.41. He therefore argued that Rule 21.41 would not apply to an appeal by a Member against conviction but not sentence, against a costs order by the Tribunal under Rule 21.33 or against a decision by the Tribunal under Rule 21.36 to direct publication of its decision where it finds a Member not guilty of a charge. Similarly he submitted that Rule 21.41 does not apply to a decision under Rule 21.35 to refuse an application by the Member to prohibit or limit publication of the Disciplinary Tribunal's decision. 34. We accept that, on a narrow reading of the provisions of Rule 21.41, Mr Thompson's submission could well be correct. We also accept that, if such a narrow reading of Rule 21.41 was adopted, that would have results which we doubt were intended if( as we think is the case) there is no power to hear appeals which are outside the scope of Rules 21.22 or 21.41. 35. Having said that, however, the very narrow interpretation urged on us by Mr Thompson leads to some very odd, and on the face of it, absurd results. For instance, an appeal against a finding of guilt would not be subject to the 14 day time period provided for in Rule 21.41 (and indeed would not be subject to any time limit except that it must be brought within some unspecified reasonable time) but a decision on penalty would have to be brought within the 14 day period. Similarly, the provisions of Rule 21.43, which require that the Member be given not less than 14 days written notice of the appeal hearing when any appeal is lodged under 7

Rule 21.41, would apply in respect of an appeal against penalty only but would not apply in respect of an appeal against a finding of guilt. 36. We consider it is very unlikely that the reference in Rule 21.41 to decisions of the Disciplinary Tribunal made under Rule 21.31 was intended to restrict the right of appeal conferred by Rule 21.41 to appeals only from decisions as to penalty in exercise of the powers conferred under subparagraphs (a)-(o) of Rule 21.31. In our view the most likely purpose and intention of Rule 21.41 was to confer a right of appeal in respect of a finding of guilt and to decisions which flow from a finding of guilt. 37. We accept that, technically, a finding of guilt (or otherwise) may be made by the Disciplinary Tribunal under Rule 21.30. However, the opening paragraph of Rule 21.31 describes the powers of the Disciplinary Tribunal to impose penalties where the Disciplinary Tribunal finds a member guilty of a charge. In our view, the trigger for decisions which fall within the scope of Rule 21.41 is a finding of guilt by the Disciplinary Tribunal. Decisions of the Disciplinary Tribunal which flow from such a finding are, in our view, appealable under Rule 21.41. 38. Decisions of the Disciplinary Tribunal which flow from a finding of guilt would include decisions exercising the penalty powers conferred by Rule 21.31 and would also include other consequential decisions such as decisions made under Rules 21.33 (as to costs) and decisions under Rule 21.35 relating to publication of its decision. 39. Such a construction of the scope of Rule 21.41 is a liberal interpretation. It may even, as submitted by counsel for the Member, do some damage to the words used in Rule 21.41. 40. In our view, however, we should interpret the words of Rule 21.41 in a manner which best gives effect to what we consider is the intention of the Rule. We accept, however, that even adopting a liberal interpretation of the scope of Rule 21.41 so that it applies to all decisions flowing from a finding of guilt, does not resolve some possible anomalies. 41. In particular our interpretation would mean that a decision by the Disciplinary Tribunal to direct publication of its decision where a member has been found not guilty would not be within the scope of Rule 21.41 and would not be appealable. Similarly a decision by the Disciplinary Tribunal that a Member was not guilty of a charge would not be appealable by the PCC. 42. We are not able to ascertain whether it was intended that there should be a right of appeal by the PCC against a finding that a Member was not guilty of a charge. We understand from counsel for the PCC that he was not aware of any such appeal being made by the PCC previously (as opposed to appeals by the PCC against penalty which have been made and which would, in any event, clearly be within the scope of Rule 21.41). 8

43. As indicated above, we consider that the Rules would benefit from reconsideration and amendment to make it as clear as possible which decisions of the Disciplinary Tribunal are appealable (and if so by whom) and which decisions are not. If a very broad power to hear appeals from any decision of the Disciplinary Tribunal is intended then amendment to Rule 21.41 may be as simple as deleting the reference to decisions "made under Rule 21.31". 44. Such a change may, however, be too broad because it would then suggest that procedural decisions by the Disciplinary Tribunal (such as decisions as to adjournment) would be susceptible to appeal as would decisions finding a Member not guilty. It is, however, a matter for the Institute (by making express provision in the Rules) to determine which decisions are susceptible to appeal and which are not. Conclusion 45. We conclude that: (i) The power of the Appeals Council to hear appeals is confined to appeals which are within the scope of Rules 21.22 and 21.41 of the Rules and which are made within the time period specified in those Rules. The Appeals Council has no power to hear appeals which are made outside the 14 days period prescribed by those Rules. (ii) Absent a valid appeal there is no jurisdiction to hear an appeal. An appeal from a decision made under Rule 21.35 is a decision which flows from a Member being found guilty of a charge and is within the scope of Rule 21.41. Had the appeal in this case been brought within the 14 day period prescribed by Rule 21.41 the Appeals Council would have had jurisdiction to hear the Appeal. Because, however, the appeal was brought outside that period (and there is no power to extend time for bringing the appeal) the Appeals Council has no jurisdiction to hear this appeal. In case, however, the Appeals Council is wrong in its decision that it has no jurisdiction to hear this appeal, the Appeals Council has considered the merits of the appeal. For the reasons discussed below the Appeals Council would not, if it had jurisdiction to hear the appeal, have allowed the appeal. Merits of the Appeal 46. As noted above the appeal was confined to that part of the decision by the Disciplinary Tribunal which declined the Member's application for non-publication. The decision of the Disciplinary Tribunal in respect of publication was very brief. It stated: You sought non-publication of your name due to the significant commercial impact you believed would result for your practice. However the Tribunal finds that this private interest is outweighed by the public interest in the identity of a tax practitioner whose own practice has had significant and longstanding tax arrears. 9

47. The Tribunal then ordered, in accordance with rule 21.35 of the Rules, that the decision of the Disciplinary Tribunal be published on the Institute's website and in the Chartered Accountants' Journal with mention of the Member's name and locality. 48. We note that the decision of the Tribunal was made immediately following a one day hearing devoted primarily to evidence regarding whether the Member continued to operate The Whyte Group Limited while it remained insolvent. The Member had admitted that The Whyte Group Limited had operated while insolvent but disputed that it remained insolvent. The Disciplinary Tribunal held that the allegation that The Whyte Group Limited continued to operate while insolvent was not proved. 49. When a Member seeks non-publication it is important that the Disciplinary Tribunal give full reasons for its decision in respect of any such publication. The reason given by the Disciplinary Tribunal in this case was confined to a briefly described private interest of the Member being outweighed by the public interest in the identity of a tax practitioner whose own practice has had significant and longstanding tax arrears. We consider that both the Member and this Council would have benefitted from a more detailed analysis of the competing public and private interest considerations which influenced the decision of the Disciplinary Tribunal. 50. As pointed out by counsel for the Member, in considering the appeal, we are left with the reasons for it as stated by the Disciplinary Tribunal. It was common ground that the appeal is from the exercise of a discretion by the Disciplinary Tribunal and that the onus is on the appellant to show that the decision was wrong by demonstrating some error in the Tribunal's approach, or its reasoning, in reaching the conclusion that it did, or that it could not reasonably have reached that conclusion.1 51. We also adopt the approach by the Appeals Council in its decision of 29 June 20122 that the PCC does not have to show that publication is necessary for the protection of the public or to ensure the maintenance of standards. The presumption in the Rules in favour of publication takes care of that. It is up to the appellant to prove factors which take the case out of the preponderance of cases of this kind. 52. The presumption in favour of publication is strongly reflected in the Rules, including rule 21.35(a) of the Rules. Unless special circumstances which justify a decision to limit or prohibit publication are established, publication will follow a finding of guilt. 53. We accept that the process of reaching a decision on an application for non-publication involves a balancing of the private interests put forward by the Member as supporting the application for non-publication against the public interest in publication including the public ' Appellant v The Professional Conduct Committee of the New Zealand Institute of Chartered Accountants, 29 June 2012. 2 Ibid 10

interest in transparency, protection of the public and maintenance of the high standards and good reputation of the profession. Submissions for the appellant 54. In summary, the submissions for the Member in support of the appeal were: (a) The sole reason given by the Disciplinary Tribunal for ordering publication was the public interest in knowing that the appellant was a tax practitioner who had long outstanding tax arrears in his business. (b) That finding gave rise to an inference that failure by the appellant to pay a tax debt reflected adversely on his ability to provide competent tax advice or tax related accounting services and that this should be published in the public interest. (c) That there was no basis for any finding of incompetence or of client care failures and it was therefore plainly wrong for the Tribunal to draw that inference. (d) That the Disciplinary Tribunal failed to give any, or any sufficient, weight to the private interests of the Member and in particular the impact which publication of the decision could have on his practice. In essence, the submission was that the Mernber's practice was a specialist practice which was significantly dependent upon provision of highly specialised and expert advice to a limited number of high net worth individuals. The concern was that publication could result in competing members of the profession using the decision to undermine the practice of the member by using the decision of the Disciplinary Tribunal to persuade clients to take their business elsewhere. Submissions by counsel for the PCC 55. Mr Moon, for the PCC, rejected the assertion that the inference argued for by counsel for the appellant could be drawn from the reason stated by the Tribunal for its decision. Mr Moon also pointed out that the public interest in publication is much broader than simply protection of members of the public from the risk of incompetence of a member. There are other public interest factors, such as the public interest in knowing the identity of the practitioner, the possibility of impugning other members of the profession when publication was not made and the importance of publication in maintaining high standards of conduct within the profession. Mr Moon also submitted that the impugned conduct of the member in this case was very serious in nature and that the public, including clients both present and future, should know of that conduct. 11

Discussion 56. We do not accept that the stated reason of the Disciplinary Tribunal for declining the application for non-publication gives rise to an inference that failure of the member to manage the tax affairs of his company meant that his competence and expertise to manage the affairs of his clients was impugned. 57. There is no suggestion in the evidence or in the decision itself that the Member's technical expertise or competence in advising his clients, or in assisting them with the management of their affairs, was being impugned. We do not consider that the inference sought to be drawn from the Disciplinary Tribunal's reasons for its decision is either a necessary or reasonable inference. 58. As is made clear in the decision itself, the Member had admitted failures to pay taxes, including GST, PAYE, income tax and penalties and UOMI. He admitted that his failings to ensure payments to the Inland Revenue Department in accordance with arrangements to repay the outstanding tax liabilities were such that, in 2012, the Inland Revenue Department applied to liquidate the Member's chartered accountancy practice, The Whyte Group Limited. He had also admitted that The Whyte Group Limited had operated while it was insolvent. Of the six particulars of the charges made against the Member four related to the long outstanding tax arrears. These matters were clearly significant. 59. The remaining two particulars of the charges, which were admitted by the Member, related to failure to respond to correspondence from the Practice Review Unit and/or the PCC in a timely manner and failure to comply with an undertaking given to the PCC. 60. It is clear from the evidence before the Disciplinary Tribunal and submissions by counsel for the Member before us that the Member found himself in a difficult financial position as a result of a combination of factors. These included costs incurred in relation to expansion of the Member's business premises and staff, the impact of the global financial crisis ("GFC"), the need to write off substantial debts of clients affected by the GFC and the slowing down of business following the GFC. These factors led to the failure of The Whyte Group Limited to meet its tax obligations and the subsequent mushrooming of the tax liabilities incurred. 61. Counsel for the Member accepted that the charges (breach of the Fundamental Principle of Professional Behaviour and breach of rule 10 - timeliness) were serious in nature. Ms McMahon submitted, however, that publication was not penal in nature and, in circumstances where there was no public risk arising from proven incompetence in the provision of services to clients, the private interest in protecting the possible impact of publication on the Member's practice outweighed the public interest in protecting the public. 62. We do not agree. The conduct of the Member constitutes serious breaches of standards of professionalism and timeliness which we consider to be matters of key importance. In our 12

view the particulars of the charges admitted by the Member reflect a serious lack of professionalism and timeliness both in the Member's dealings with the IRD and in his dealings with the Institute. 63. We also accept the submission by Mr Moon that publication is not just about protecting members of the public from the risk of incompetence in management of the client's affairs. Publication also fulfils an important function in communicating to the profession, and to the public generally, the standards which are expected of the profession and in defining what conduct is regarded as falling below those standards. We also consider that particularly where, as in this case, the Member is in a specialised area of practice there is a strong public interest in transparency which means that identification of the practitioner is important. 64. The Member stated that he had informed some of his clients of the existence of the charges but had not provided them with a copy of the Disciplinary Tribunal's decision. In our view, it is important that the public (including present and future clients) and the profession be informed both as to the identity of the Member and the nature and grounds of the charges in respect of which he has been found guilty. 65. We do not accept that the charges are at the lower end of the scale. We consider that the charges reflect serious failures of professionalism and timeliness by the Member which the public and members of the profession should know of. 66. In our view the fact that the Member is a specialist tax practitioner whose practice had long outstanding tax arrears, as described in the particulars, was sufficient in itself to justify publication in the public interest. That ensures that the public, including existing and potential clients, can judge for themselves whether the Member's conduct is such as to warrant choosing someone else to advise or assist them. 67. We also consider that the issues of timeliness in the Member's dealings with the Practice Review Unit and the PCC are serious breaches. The Institute, through its disciplinary bodies and procedures, carries out an important and essential function in the interests of the profession and the public generally. 68. We regard the admitted failings of the Member in his dealings with the Practice Review Unit and the PCC as being just as serious as the breaches in relation to his dealings with the Inland Revenue Department. We think the profession should be informed of these matters. Publication of the decision is an important part of the public interest in maintaining high standards in the profession. 69. We do not consider that the Member's concerns regarding possible decisions by clients to take their business elsewhere, or for that matter the risk that competing members of the profession may use the decision to persuade clients to take their business elsewhere, is a sufficient reason to justify a decision limiting or prohibiting publication. On the contrary, we think it is important 13

that present and prospective clients be informed so that they can make their own decisions as to whether, in light of the Member's conduct, they wish to engage the Member. 70. In our view the decision of the Disciplinary Tribunal was reasonably open to it on the evidence. There is no evidence that the Disciplinary Tribunal erred in weighing the private interests of the Member against the public interest in publication. In our view there are no sufficient grounds established on the evidence which would justify limiting or prohibiting publication. 71. Even if, therefore, we had jurisdiction to hear the appeal, we would not have allowed the appeal. Conclusion 72. There being no jurisdiction to hear the appeal, the appeal is dismissed. Costs 73. If the parties cannot agree costs and the PCC wishes to seek costs, written submissions should be filed by the PCC and served on the solicitors for the Member. Any submissions in reply by the Member should be filed within 14 days of service of the submissions of counsel for the PCC. Dated this 8th day of April 2014. 14