In Australian Securities & Investments Commission [ASIC] v Ingleby [2012] VSC 339 Judge Robson of the Supreme Court of Victoria made a declaration of contravention under s 1317E(1) of the Corporations Act in respect of one admitted contravention by former Australian Wheat Board Chief Financial Officer Paul Ingleby and banned him from managing a corporation until the end of 2012 and fined him $10,000 for his involvement in co-authorising payments by AWB in breach of the Oil For Food Program administered by the United Nations.
UPDATE 27 August: ASIC has announced its intention to appeal the penalty decision.
UPDATE 19 March 2013: The Victorian Court of Appeal has increased the penalties imposed against Mr Ingleby to a pecuniary penalty of $40,000 and disqualification for a period of 15 months.
Judge Robson applied the same principles he discussed in ASIC v Lindberg (discussed here).
Interestingly, in contrast to Lindberg’s penalty, he did not accept ASIC’s penalty recommendation under the circumstances: “I find that the agreed period of disqualification and pecuniary penalty broadly speaking are too severe and fall outside the permissible range that are appropriate in all the circumstances to Mr Ingleby’s contravention of the Act. ”
Judge Robson decided that “Mr Ingleby’s contravention was not one of dishonesty or lack of integrity, nor was it one of some degree of wilful blindness. Mr Ingleby says that his contravention must be seen in the context of the many duties he was required to perform in the structure of AWB. …
Mr Ingleby accepts that he failed to ‘join the dots’. It is not alleged, however, that he was actually told in a face-to-face meeting of the details of how inland transport fees were paid nor is it alleged that he had actual knowledge of what was going on or that he was directly advised by officers of AWB. The auditors did not raise these matters with Mr Ingleby. ..
Mr Ingleby accepts, however, that had he ‘joined the dots’ and with the benefit of hindsight, he would have appreciated that AWB was acting in breach of the OFFP and therefore in breach of UN resolutions. ”
Judge Robson took account of Ingleby’s contrition and that the proceedings commenced in 2007. He did not file a defence and co-operated fully.
ASIC is reviewing its position.
