Meaning of member in this Chapter
In this Chapter, “member” includes a member’s representatives and employees and in the case of a hearing pursuant under Rule 3.05 an applicant for membership of GASCI.
Establishment of Disciplinary Committee
There is hereby established a Disciplinary Committee whose membership shall be determined by the Board from time to time but which shall include one or more lay persons sufficient to secure, in the view of the Board, a proper balance between the interests of GASCI, its members and their customers.
Co-operation of member required
A member shall co-operate fully with any enquiry made by the Disciplinary Committee and shall give all necessary assistance including –
- furnishing to the Disciplinary Committee promptly, or within such reasonable time as may be specified by the Disciplinary Committee, such information and accounts as the Disciplinary Committee may reasonably require;
- permitting directors, officers, representatives or other employees to be interviewed by or on behalf of the Disciplinary Committee, ensuring as far as possible that they are made available for interview and answer truthfully and fully any questions put to them;
- giving at all times full access to any premises where the member carries on his business or maintains records; and
- permitting documents, records or other material in his possession or under his control to be produced to, inspected and, where necessary, copied by the Disciplinary Committee.
Powers of Disciplinary Committee
The Disciplinary Committee may exercise any of the following powers –
- declare that there is no case for the member to answer;
- decide that no further action should be taken;
- issue a private warning or reprimand to the member;
- issue a notice of public censure against the member;
- impose a fine on the member in such amount as it considers appropriate but in any event not exceeding $250,000;
- suspend or revoke the registration of the member’s representatives;
- recommend to GASCI that the Board makes an expulsion order or suspension order under rule 8.05 in respect of the member.
Power of Board to expel or suspend
The Board shall, before refusing membership or imposing conditions on such membership or imposing conditions on employment by a member and before disciplining a member or an employee of a member, comply with the procedures specified for orders under section 38 (4) of the Act.
The Board may expel a member from membership of GASCI or suspend all or any of a member’s rights of membership or impose conditions on such membership, or impose conditions on employment by a member for a fixed or continuing period by making an expulsion order or a suspension order without complying as required by subsection 38 (4) of the Act where the Board is satisfied that the member –
- has ceased to be a fit and proper person to carry on the business of dealing in securities;
- has contravened any provision of the Act, any regulation made under the Act or of these rules;
- has provided GASCI with false, inaccurate or misleading information in purported compliance with any requirement under these rules; or
- in any other case where the Board feels such action to be appropriate for the protection of investors.
- has been expelled or is under suspension from another self-regulatory organisation.
Where the Board without complying as required by 38 (4) of the Act they shall provide an opportunity for a hearing within seven days of its decision and the suspension, prohibition or limitation shall remain in effect until the hearing is completed.
Institution of disciplinary proceedings
Where the Board has a reasonable belief that –
- there are circumstances suggesting that a member is not a fit and proper person to carry on the business of dealing in securities; or
- there has been a contravention by a member of the Act, any regulation made under the Act or of these rules, and the Board decides that the matter warrants being made the subject of disciplinary proceedings, the Board shall refer the matter to the Disciplinary Committee for determination by way of disciplinary proceedings.
Jurisdiction of Disciplinary Committee
The Disciplinary Committee shall hear and determine disciplinary proceedings against a member referred to it by the Board under rule 8.06.
- The Board shall appoint a suitably qualified and experienced individual to act as secretary to the Disciplinary Committee to carry out its administrative functions.
- The secretary may sit with the Disciplinary Committee but may not take part in its deliberations.
Statement of the allegations of fact and law
Within 7 days of the referral of disciplinary proceedings to the Disciplinary Committee, the secretary to the Disciplinary Committee shall serve on the member a concise statement of the allegations of fact and law which shall comprise the charge or charges and a summary of the principal facts to be relied on.
Exchange of evidence
After the service of a statement of the allegations under rule 8.09 except where the member has notified the secretary to the Disciplinary Committee in writing that all charges are to be admitted –
- the secretary to the Disciplinary Committee shall, within 7 days of the service of the statement of the allegations, serve on the member copies of any documents on which the Disciplinary Committee intends to rely and a list of the witnesses it proposes to call together with an outline of the proposed evidence; and
- the member shall, within 14 days of the secretary to the Disciplinary Committee complying with the requirement under paragraph (a), serve on the secretary to the Disciplinary Committee a statement of defence which shall include its intended pleas to the charges, which evidence is agreed, which documents are agreed, what admission of facts the member makes, and a list of the witnesses it proposes to call together with an outline of their proposed evidence.
Notice of hearing
- The secretary to the Disciplinary Committee shall give the member not less than 14 days written notice of the time and place of hearing.
- The notice of hearing shall include the statement that, if the member fails to attend at the hearing, the Disciplinary Committee may proceed without giving the member further notice.
Admission of charges
The member may admit all or any of the charges referred to in the statement of the allegations by notice in writing to the secretary to the Disciplinary Committee not less than 2 days before the day of the hearing.
- The member shall attend the hearing by an officer or by its principal.
- If the member fails to attend the hearing, the Disciplinary Committee may proceed in its absence.
Standard of proof
- The standard of proof shall be that applicable in civil proceedings (the balance of probability).
- If the members of the Disciplinary Committee are not unanimous as to any finding, penalty or other matter, the decision of the Disciplinary Committee shall be that of the majority provided that, if the members are equally divided, the decision shall be that which most favours the member.
Evidence and directions
Proceedings at the Disciplinary Committee hearing shall be governed by these rules and by the rules of natural justice, subject to which the Disciplinary Committee may –
- admit as evidence at a hearing any oral testimony or documentary exhibit that it considers relevant to the subject matter of the proceedings and may take notice of any fact that may be judicially noticed and of any generally recognised scientific or technical fact information or opinion within its area of expertise;
- make all such directions with regard to the conduct of and the procedure at the hearing as the Disciplinary Committee considers appropriate for securing a proper opportunity for the member to answer the case against it and otherwise as may be just.
Conduct of hearing
In conducting the hearing the Disciplinary Committee may regulate its sittings and apply such rules on procedure and practice as it sees fit, provided that –
- the Disciplinary Committee shall act fairly and shall give the member a reasonable opportunity to make written or oral representations, to call witnesses and to cross- examine any witness called against him;
- the Disciplinary Committee may determine the issue and any penalty on the basis of written evidence and representations if, having regard to the nature and gravity of the matter in issue, it is satisfied that it is suitable for such determination and the member consents to such a procedure being adopted;
- in determining the issue by way of oral hearing, the Disciplinary Committee –
- shall hear the matter in public;
- shall permit the member to be represented by counsel;
- where the matter in issue against a member is found to be proved, the Disciplinary Committee shall, before exercising its disciplinary powers, allow the member, or anyone on its behalf, to address it in mitigation of penalty.
Record of hearing
- The Disciplinary Committee shall cause a record to be made of the hearing electronically or otherwise.
- The member is entitled to a transcription or copy of the record on payment of the cost.
Following the conclusion of the hearing of the disciplinary proceedings, the Disciplinary Committee shall deliver to the member, GASCI and each person who appeared as a witness at the hearing, a written decision comprising a summary of –
- the charges admitted;
- its finding of fact;
- its findings, with a statement of its reasons, as to whether any charges not admitted are proved; and
- any penalties and order for costs imposed.
- The Disciplinary Committee may order the member to pay costs as it thinks fit, including any costs which in the view of the Disciplinary Committee, regardless of the outcome of the proceedings, have been unnecessarily caused.
- Costs awarded shall be payable within 15 days of the written notice of the determination of the amount or the conclusion of any appeal against that determination.
Right of appeal against finding charge is proved
A finding by the Disciplinary Committee that a charge is proved may be appealed to the Council. The Council may grant a stay pending the decision of the Council.
Right of appeal on penalty or costs
A member may appeal to the Council against the penalty on any charge or any award of costs on the ground that the penalty imposed or the amount awarded was excessive.
Time for appeal
Within 10 days of the service on it of the decision of the Disciplinary Committee, the member may appeal to the Council by serving a written notice of appeal on GASCI and the Council.
Notice of appeal
A written notice of appeal (other than in respect of costs only) shall set out each charge relevant to the appeal, the ground or grounds of appeal in relation to each charge and a brief statement of the matters relied on in respect of each ground.
Appeal proceedings by written submissions
An appeal shall be made by the member by way of written submissions.
Powers of the Council
After considering the written submissions of the member, the Council may confirm, reverse or vary the decision of the Disciplinary Committee and may make any order which the Disciplinary Committee could have made.
Other than in respect of an adjudication made by the Council as a result of a dispute between members covered by Rule 8.27 a member may seek to appeal any decision made by the Council via the right of redress to the Court.
Disputes between members
- Where a dispute involving transactions in securities arises between members, such dispute shall be referred to the Board, and the Board shall investigate the dispute, and shall make such order as the resolution of the dispute as it thinks fit.
- The Board and each of the parties to the dispute will forthwith inform the Council in writing of the existence of the dispute and deliver or cause to be delivered to the other parties within twenty-four hours of such notice being delivered to the Council, a copy of the notice given to the Council of the dispute.
- Where a member is aggrieved by the decision of the Board, the member may, within fourteen days of the receipt of such decision, appeal to the Council.
- Where the Council adjudicates in a matter referred to it under subsection (c) the decision of the Council will be final and no appeal shall be brought in respect thereof.
- The Council may order the payment by any party to the dispute any sum of money, including a sum to cover costs, as the justice of the case in the opinion of the Council require.