Successful appeal by a HIH director against disqualification by APRA

The Administrative Appeals Tribunal has set aside the disqualification of Mr Charles Abbott by the Australian Prudential Regulation Authority (APRA): Abbott and Australian Prudential Regulation Authority [2008] AATA 641

Mr Abbott, who was an alternate director at HIH Limited (HIH) from August 1995 to May 1997, a non-executive director from May 1997 to 2001 and Deputy Chairman from January 2001, was disqualified by APRA from being or acting as a director or senior manager of a general insurer on 18 February 2005.

APRA’s view was that Mr Abbott’s conduct as a director of HIH satisfied it that he was not a fit and proper person to carry out the roles of a director or senior manager of a general insurer. APRA alleged non-disclosure  of certain consultancy fees and commissions.

The AAT concluded that on the facts the APRA decision was wrong:

"it is appropriate to proceed on the basis that APRA’s Statement of Facts and Contentions, in so far as it sought to impugn Mr Abbott’s conduct “in the months before 15 March 2001", lacked a sound factual basis. In truth, the substance of APRA’s criticisms really turns on Mr Abbott’s conduct on the tumultuous days of 13 and 14 March 2001. Most specifically they turn on an assessment of his conduct in encouraging the pre-emptive payment of the Ashkirk invoices on 14 May 2001.

I have found that Mr Abbott’s conduct in encouraging the pre-emptive payment of the Ashkirk invoices on that day was improper. Nevertheless, his conduct in encouraging and receiving payment in these circumstances did not breach any law or involve any misuse of his position as a director of HIH. I do not consider that Mr Abbott’s conduct on that day indicates a lack of good character. Neither do I consider that it leads to satisfaction that he is a person who is not fit and proper to act in a senior insurance role…

I am fortified in the conclusion to which I have come by a consideration of two further matters. The first is the narrow compass of the criticisms that were advanced by APRA of Mr Abbott’s conduct as a director of HIH. …

The second consideration that fortifies my conclusion is the evidence of Mr Abbott’s exemplary background and good repute. …

Mr Abbott does not wish to return to involvement in the insurance industry. He has not held any insurance role since he resigned from the HIH Board on 15 March 2001. He has no intention of pursuing any future role in the insurance industry. "

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