e-dokumen.id

Robert FergusonRobert is a Chartered Accountant, Official Liquidator and Registered Trustee inBankruptcy, specialising in insolvency practice. Robert’s experience includes being aninsolvency partner with both PricewaterhouseCoopers and Deloitte for 18 years afterwhich he established his own specialist firm. Robert has more than 30 yearsexperience in insolvency practice, is a member of the Insolvency PractitionersAssociation of Australia (IPAA) and former State Chair and National Board member ofthat organisation.George GeorgesGeorge Georges is a partner of Ferrier Hodgson in Melbourne. George has over 20years experience specialising in corporate recovery assignments. He is a CharteredAccountant, a member of the Institute of Public Accountants (IPA) and the IPAA aswell as being a Fellow of the Financial Services Institute of Australia (FINSIA).Bruce GleesonBruce Gleeson is a principal at Jones Partners Chartered Accountants, a specialistinsolvency and business recovery firm. He is a Chartered Accountant, a member ofCPA Australia and the IPAA. Bruce has in excess of 15 years corporate and personalinsolvency experience and is an Official Liquidator and a Registered Trustee inBankruptcy. He has recently been on the NSW State Council of the Institute ofChartered Accountants (ICAA), being the Chair in 2010, as well as being the 2010Junior Vice President of the Western Sydney Business Connection. Bruce has also heldroles in commerce (with James Hardie and AMP) to broaden his experience.David SauerDavid Sauer is a Chartered Accountant and Registered Company Auditor, specialisingin professional standards – financial reporting, assurance and ethics. He providesprofessional education for accountants and independent advice on the application ofstandards in transactions, commercial disputes and regulatory compliance. He hasworked in public practice since 1983 and now assists mid-tier and smaller accountingfirms to develop and monitor their quality assurance and audit policies andprocedures. David was a member of the Institute of Public Accountants’ Legislationand Standards Committee from 2000 to 2009.Eric PassarisEric Passaris is a partner with Grant Thornton in Melbourne and has specialised inaudit and assurance services for over 25 years. Eric is a registered company auditorand a member of ICAA and CPA Australia. He is a member of CPA Australia’sDisciplinary Committee and is called upon to provide expert evidence inauditor/accountant professional negligence cases for legal proceedings, commercialdisputes, insurance claims and disciplinary proceedings.5

David BarnettDavid Barnett is the General Manager, Listings, Australian Stock Exchange (ASX)Compliance with ASX Limited. The Listing's unit plays a key role in monitoring andenforcing compliance with ASX Listing Rules and with ASX Operating Rules. He hasbeen with ASX for 18 years, and has been a senior liaison point for ASX on many ofAustralia's most significant transactions for listed entities and Initial Public Offerings.He has a Bachelor of Commerce (Accounting) and is a member of CPA Australia.Tom BostockTom Bostock was a partner of Mallesons Stephen Jaques from 1970 until 2004, andfrom 2005 until 2010 a special counsel to Gadens Lawyers, specialising in corporatelaw. He is a Fellow of the Australian Institute of Company Directors (AICD) and is amember of that Institute’s Law Committee. He was also Chairperson, and remains amember, of the Corporate Law Committee of the Law Institute of Victoria and was amember of the Legal Committee of the Companies and Securities AdvisoryCommittee.Geoff BrayshawGeoff Brayshaw is a Chartered Accountant and company director. He has spent35 years in the accounting profession and was a former audit partner and managingpartner of the Perth practice of BDO, retiring from public practice in 2005. He now hasa number of directorship roles including non-executive director and Chairperson ofthe audit committee of each of Fortescue Metals Group Limited, Poseidon NickelLimited and Avea Insurance Limited, and a former board member of the SmallBusiness Development Corporation in Western Australia. He was formerlyChairperson of Gumala Investments Pty Ltd, an Aboriginal corporation trusteecompany. He was National President of the ICAA in Australia for 2002 and was madea Member of the Order of Australia in 2007.John KeevesJohn Keeves is a partner and Head of Transactional and Advisory Practice Group atlaw firm Johnson Winter & Slattery, specialising in mergers and acquisitions, corporateand securities law and corporate governance. He is a member of the Takeovers Panel, aformer chairperson of the Corporations Committee of the Law Council of Australiaand a member of the Executive of the Business Law Section of the Law Council, aSenior Fellow and former Director and Life Member of FINSIA, as well as a member ofthe AICD, Banking and Financial Services Law Association, AVCAL and AMPLA.Karen O'FlynnKaren O'Flynn is a Partner of Clayton Utz and the national leader of that firm'srestructuring and insolvency practice group. Karen is a member of the Clayton Utzboard and a Vice-Chair of the Insolvency Section of the International Bar Association.6

Ian RamsayIan Ramsay is the Harold Ford Professor of Commercial Law in the Faculty of Law atthe University of Melbourne where he is Director of the Centre for Corporate Law andSecurities Regulation. He is a member of the Corporations Committee of the LawCouncil of Australia and the Corporations and Markets Advisory Committee. He wasHead of the Federal Government inquiry on auditor independence, a member of theInternational Federation of Accountants taskforce on rebuilding confidence in financialreporting, a member of the Audit Quality Review Board, a member of the TakeoversPanel and a member of the National Law Committee of the Australian Institute ofCompany Directors. He has practised law with firms in New York and Sydney.Applications received by CALDB in the reportingyearFive new applications were received during the reporting year. As noted, this is incontrast to recent experience, where few applications of significance have been broughtbefore the Board. The number of applications brought before the Board by ASICdropped off significantly in 2008. The Board is unaware of the reasons underlying thispattern of activity.CALDB has implemented its revised procedures in relation to the new matters and hasattempted to set matters down for the earliest appropriate hearing dates. CALDB hassought to minimise the reliance on expert evidence and as noted, is in a uniqueposition to adopt this course as it possesses specialist expertise permitting it to assessapplications by reference to its own knowledge of professional standards.As the new matters only came to CALDB part way through the reporting year, theoutcomes are largely not reflected in this year’s report.The tables below provide a summary of the status of the matters before CALDB duringthe reporting year:Matters before CALDB during the reporting yearAuditorsConductAdministrativeUncompleted matters at 1/7/12New Applications-1Matters withdrawnMatters Dealt with – Orders issued-1Uncompleted matters at 30/6/13--The new administrative application was heard and determined in April 2013. One further conduct application in relation to anauditor was received shortly after 30 June 2013.7

LiquidatorsConductAdministrative41-1Matters dealt with – orders issued--Uncompleted matters at 30/6/134-Uncompleted matters at 1/7/12New ApplicationsMatters WithdrawnThe first of the new conduct applications was heard in May 2013 and a decision was issued in July 2013. The second was heard inJuly 2013 and a decision is pending. The other two new conduct applications were only lodged with CALDB in June 2013 and are tobe heard later this year.Hearing days during the reporting yearAs matters can extend over the end of a financial year, the overview in the table belowprovides data on the number of days in which Board members were engaged in actualhearing days.ActivityAuditors 2013Auditors 2012Liquidators 2013Liquidators 2012Hearing days3 man days0 man days30 man days0 man daysIn addition to attendance for formal hearing days, CALDB members are involved inpreparation for hearings, including travel to hearing venues, review and analysis ofevidence, preparation and review of determinations and subsequent decisions andorders. In respect of each application that proceeds to a contested hearing, theChairperson of the relevant Panel plays the principal role in drafting the determinationand any orders, together with the supporting reasons for each. In addition, the BoardChairperson is responsible for conducting pre-hearing conferences relating to allmatters before CALDB and is also involved in the general affairs of CALDB.Results by nature of sanctionThe table below records the results of matters before CALDB during the reporting yearby nature of sanction. As already stated, the outcomes of the new matters brought toCALDB during the reporting year are largely not yet reflected in this year’s report.08/0909/1010/1111/1212/13Registration cancelled61-11Registration kings required to be given22---Dismissed1----Withdrawn by ASIC8----Results of application8

CALDB procedures with respect to applicationsAs noted above, applications to CALDB may be made by either ASIC or APRA.Provisions of the Corporations Act and ASIC Act prescribe the essential procedures.These provide, importantly, that CALDB is required to provide a respondent with theopportunity to appear at a hearing held by CALDB and to make submissions to andadduce evidence before CALDB in relation to a matter. Hearings are conducted by apanel of board members.More detailed procedures adopted by CALDB are contained in its Manuals of Practiceand Procedure. There is a manual for conduct matters and a manual for administrativematters. The manuals set out procedures to be followed in relation to the filing andexchange of documents and other material prior to a hearing and the procedures forpre-hearing conferences and for hearings. CALDB has also issued a Costs PracticeNote and Mediation Guidelines and a pro forma Mediation Agreement.The Manuals of Practice and Procedure, the Costs Practice Note, the MediationGuidelines and the draft Mediation Agreement are provided to all parties involved inproceedings before CALDB. These documents are available on the CALDB websiteand are reviewed and updated from time to time.CALDB categorises the matters brought before it as administrative matters or conductmatters. The categorisation has been adopted by CALDB as a procedural policy andwill be reviewed from time to time. In general terms, administrative matters involveless complexity and are less time consuming than conduct matters.CALDB categorises as administrative matters those matters that arise fromapplications pursuant to the following provisions of the Corporations Act:subparagraph1292(1)(a)(i)failing to lodge annual statement under section 1287A (auditor)subparagraph1292(1)(a)(ii)ceasing to be resident in Australia (auditor)subparagraph1292(2)(a)(i)failing to lodge annual statement under section 1288 (liquidator)subparagraph1292(2)(a)(ii)ceasing to be resident in Australia (liquidator)subparagraph1292(3)(a)(i)failing to lodge a statement under section 1288(5) (liquidator of a specified bodycorporate)subparagraph1292(3)(a)(ii)ceasing to be resident in Australia (liquidator of a specified body corporate)paragraph 1292(7)(a)becoming disqualified from managing corporations under Part 2D.6 (auditor orliquidator)paragraph 1292(7)(b)becoming incapable because of mental infirmity of managing affairs (auditor orliquidator)9

CALDB categorises as conduct matters those matters which arise from applicationspursuant to the following provisions of the Corporations Act:subparagraph1292(1)(a)(ia)contravening section 324DB by playing a significant role in an audit withoutbeing eligible to do so (auditor)subparagraph1292(1)(a)(ia)failing to comply with a condition of registration (auditor)subparagraph1292(1)(b)(i)not performing any audit work for five years and as a result ceasing to have thenecessary practical experience (auditor)subparagraph1292(1)(b)(ii)not performing any significant audit work for five years and as a result ceasing tohave the necessary practical experience (auditor)subparagraph1292(1)(d)(i)failing to carry out the duties of an auditor (auditor)subparagraph1292(1)(d)(ii)failing to carry out any duties or functions required by an Australian law to becarried out by a registered auditor (auditor)paragraph 1292(1)(d)not being a fit and proper person to remain registered as an auditor (auditor)subparagraph1292(2)(d)(i)failing to carry out the duties of a liquidator (liquidator)subparagraph1292(2)(d)(ii)failing to carry out any duties or functions required by an Australian law to becarried out by a registered liquidator (liquidator)paragraph 1292(2)(d)not being a fit and proper person to remain registered as a liquidator (liquidator)paragraph 1292(3)(d)failing to carry out the duties of a liquidator of a body corporate or otherwise notbeing a fit and proper person to remain registered as a liquidator of thatcorporation (liquidator of a specified body corporate)In general CALDB has power to cancel or suspend the registration of a registeredauditor or a registered liquidator, if any of these grounds has been established to itssatisfaction.If a ground is established under paragraph 1292(7)(a) or (b) then CALDB has nodiscretion but to cancel the registration of the practitioner concerned.In relation to conduct matters under paragraphs 1292(1)(d), (2)(d) or (3)(d), CALDBhas additional powers under subsection 1292(9) to admonish, reprimand or requireundertakings. These powers may be exercised in addition to, or instead of, the powersto cancel or suspend registration.Where the registration of a person has been suspended, CALDB may, on anapplication by the person or of its own motion, by order under s 1295, terminate thesuspension.Section 1294A of the Corporations Act provides that the Chairperson may if heconsiders that it would assist the conduct of the hearing, convene one or more prehearing conferences with the parties. The Chairman uses the pre hearing conferencesto: fix a hearing date10

give directions about the timing of the filing of evidence and submissions; and give directions about the procedure to be followed generally at or in connectionwith the hearing.The Chairman also uses the pre hearing conferences to: encourage contact between the parties as early as possible;. refine and reduce the matters in dispute to reduce the length of the hearing andoverall costs of the proceedings; and resolve any preliminary matters.CALDB’s pre-hearing procedures are continually reviewed to ensure that they remaineffective and efficient so as to minimise costs and time for all parties.Should the parties reach consensus regarding an acceptable outcome they can referdraft agreed terms of order to the CALDB panel. CALDB does not participate in anysettlement discussions or negotiations between the parties and retains the right todetermine the appropriate orders.Panel of CALDB members to hear and determinematters.Hearings are conducted and decisions are made by a panel of members of CALDB(‘Panel’).The ASIC Act requires the Chairperson to determine those members of the Board whoare to constitute the Panel to conduct a particular hearing.A Panel must include the Chairperson or Deputy Chairperson as Chairperson of thePanel. Generally, a Panel is constituted by five members - two accounting membersand two business members. The Chairperson may consider it appropriate to convene aPanel with three members, in which case one accounting and one business memberwould be selected.Matters are heard by a duly constituted Panel which will make a determination anddecisions as necessary in relation to a particular application.All matters referred to CALDB (unless subsequently withdrawn by ASIC) mustproceed to a hearing following which the Panel will make a determination and orders.Hearings are required to be held in private unless a public hearing is requested by a11

person who is entitled to be given an opportunity to appear at the hearing (other thanASIC and APRA).For contested conduct matters, a Panel will usually hold a hearing with all membersand parties physically present. In other matters, the Panel may arrange hearings byvideo link or telephone link with one or more members or parties in differentlocations. The ASIC Act permits legal representation at all hearings, for all parties.Parties may also represent themselves.The Panel must determine whether or not it is satisfied that the contentions raised inthe application have been established. The Panel provides the parties with a writtendetermination which sets out the Panel’s conclusions (with reasons) on each of thecontentions.If a contention is determined to be established, the Panel will decide whether or not toexercise any of CALDB’s powers under section 1292 of the Corporations Act and/orwhether or not it is required to make an order under subsection 1292(7). For thatpurpose, the Panel may hold a final hearing before delivering its decision.At any final hearing, the parties will have an opportunity to present relevant evidenceand make submissions on the questions of sanctions, publicity and costs.Publication of CALDB decisionsPursuant to subsection 1296(1) of the Corporations Act, written notice of a decision bya Panel to exercise CALDB’s powers under section 1292 and the reasons for thedecision must be provided to the practitioner concerned. Pursuant to subsection1296(2), written notice of a decision by a Panel to refuse to exercise CALDB’s powersunder section 1292 or a decision that it is not required to make an order undersubsection 1292(7) in relation to a person, must be given to the practitioner concerned.A copy of any such notice must be lodged with ASIC.The notice of decision is available for inspection at ASIC except when the Panel hasdecided to refuse to exercise CALDB’s powers under section 1292 or has decided that itis not required to make an order under subsection 1292(7) (see subparagraph1274(2)(a)(iii)).Where the Panel has decided to exercise any of the CALDB’s powers under section1292 or has decided that it is required to make an order under subsection 1292(7),CALDB is required pursuant to subsection 1296(1) to publish in the CommonwealthGazette a notice setting out the decision.By arrangement with the Institute of Chartered Accountants in Australia, CPAAustralia, National Institute of Accountants, Insolvency Practitioners Association of12

Australia and the Tax Agents Registration Board, copies of notices published in theCommonwealth Gazette are provided to those bodies of which the practitioner is amember.In addition, if the Panel decides to exercise any of CALDB’s powers undersection 1292, it may take such steps as it considers reasonable and appropriate topublicise that decision and the reasons for that decision. This will include the power topost the decision and the reasons on the CALDB website. CALDB generally takes theview that it is appropriate to publish its decisions on the CALDB website as thisprovides transparency of its decisions and processes as well as contributing to thepublic educative role played by CALDB.Costs orders by CALDBAt the end of a hearing a Panel may make an order for costs, and when the Panelmakes such an order, CALDB refers the parties to its Costs Practice Note.A Panel may also order payment by a party of all or part of the CALDB’s costs of, andincidental to, a hearing.Review of CALDB decisionsA review of any decision made under section 1292 of the Corporations Act may besought before the AAT by ASIC or by APRA or by any person whose interests areaffected by the decision.A person who is aggrieved by a decision of CALDB may also apply to the FederalCourt of Australia under the provisions of the Administrative Decisions (Judicial Review)Act 1977 for an order of review in respect of a decision.Generally, reviews before the AAT are re-hearings of the application while those bythe Federal Court of Australia are concerned with a review of questions of law arisingout of the proceedings before CALDB.When a CALDB decision is under review the Board will often be restricted frompublishing any notice of decision. Such restriction may be sought by either of th

Eric is a registered company auditor and a member of ICAA and CPA Australia. He is a member of CPA Australia's Disciplinary Committee and is called upon to provide expert evidence in auditor/accountant professional negligence cases for legal proceedings, commercial disputes, insurance claims and disciplinary proceedings.