Smith v Australian Prudential Regulation Authority [2017] FCA 807

Smith v Australian Prudential Regulation Authority [2017] FCA 807

The continuation of Mr Smith's disqualification was not justified because, although the conduct that led to disqualification was serious and dishonest, it occurred around 20 years earlier, he had been disqualified for approximately 12 years and eight months, he now accepted the dishonesty and seriousness of his conduct, had expressed manifest remorse, had undertaken ethics and compliance training, had favourable evidence as to competence and character, and APRA did not consider there was any real and not remote chance that he would pose a prudential risk if the disqualification were revoked.

Jurisdiction
Australia
Judgment Date
19 July 2017
Procedural Posture
Application to Revoke or Vary Disqualification Under S 26 of the Insurance Act 1973 (cth) / Judgment on Application
Outcome
Application granted; APRA's disqualification decision was revoked with effect from 19 July 2017 and there was no order as to costs.
Legal Topics
['revocation of Disqualification' 'fit and Proper Person' 'prudential Risk' 'general Insurance Regulation']
['insurance' 'administrative Law' 'commercial and Corporations'] ['revocation of Disqualification' 'fit and Proper Person' 'prudential Risk' 'general Insurance Regulation']

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Procedural Posture

Application to Revoke or Vary Disqualification Under S 26 of the Insurance Act 1973 (cth) / Judgment on Application

Legal Issues

  1. 1 ['Whether the decision made by APRA on 5 October 2004 disqualifying John Andrew Smith under s 25A of the Insurance Act 1973 (Cth) should be revoked under s 26(1)(a).' "Whether Mr Smith's disqualification continued to be justified having regard to his prior conduct, remorse, recognition of wrongdoing, length of disqualification and likelihood of future prudential risk."]

Ratio Decidendi

The continuation of Mr Smith's disqualification was not justified because, although the conduct that led to disqualification was serious and dishonest, it occurred around 20 years earlier, he had been disqualified for approximately 12 years and eight months, he now accepted the dishonesty and seriousness of his conduct, had expressed manifest remorse, had undertaken ethics and compliance training, had favourable evidence as to competence and character, and APRA did not consider there was any real and not remote chance that he would pose a prudential risk if the disqualification were revoked.

Court Disposition

Application granted; APRA's disqualification decision was revoked with effect from 19 July 2017 and there was no order as to costs.

Orders

  • ['Pursuant to s 26(1)(a) of the Insurance Act 1973 (Cth) the decision made by the Australian Prudential Regulation Authority on 5 October 2004 that John Andrew Smith is a disqualified person pursuant to s 25A of the Act (as it then stood) be revoked with effect from 19 July 2017.' 'There be no order as to costs.']