Professional Standards – What are they? Key players: David Ian Henderson (bankrupt Christchurch Property Developer) and his business associate Ian Bruce Hyndman and their hired licenced private investigator, Wayne Idour; Robert Bruce Walker (the appointed liquidator of Henderson’s failed companies), Hamish McNicol , Fairfax Media reporter, and the New Zealand Institute of Chartered Accountants’ Disciplinary Tribuna and Professional Conduct Committee.
A Fairfax Media report by Hamish McNicol, published at 15:25 on Thursday 17 April 2014, was headlined “Liquidator fined for buffoon comment” [Emphasis added]. It commenced:
A liquidator who referred to South Island property developer Dave Henderson as a “little b*****d” and a “buffoon” in a telephone conversation has been found guilty and ordered to pay costs of $18,165. [Emphasis added]
Liquidator fined for ‘buffoon’ comment | Stuff.co.nz
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This Stuff News headline is not only wrong, it is defamatory. The online editor later changed the headline to
“Liquidator to pay for ‘buffoon’ comment” [Emphasis added].
Source: http://www.stuff.co.nz/business/industries/9954565/Liquidator-fined-for-buffoon-comment
Why the change and was the revised headline true or false?
At best both headlines are highly misleading as they and the statement quoted wrongly imply that the liquidator was compelled to pay costs (“ordered to”) because he was found “guilty” of breaching “professional standards”. But no logical nexus exists between the finding of “guilt” and the erroneous claim that the liquidator was “ordered [compelled] to pay costs”. At worst the headlines and the errors regarding costs are defamatory.
The payment of costs by Walker was NOT a consequence of the finding of “guilt”. Clearly McNicol failed to apprise himself of the true facts. The New Zealand Institute of Chartered Accountants [NZICA] Disciplinary Tribunal [DT] that met in Wellington on Wednesday 16 April 2014, did not impose any “fine” as such on the liquidator Robert Bruce Walker, or “order him to pay costs because he had been found “guilty”. Walker challenged the ruling of the ICA’s Professional Conduct Committee (PCC) that he had been “guilty” of breaching professional standards, albeit at the lower end of ‘offending’, when the “charges” were referred to the DT for their consideration de novo. The PCC had issued its finding on a complaint brought against Walker by company director Ian Bruce Hyndman, a close business associate of bankrupt Christchurch property developer David Ian Henderson.
The PCC had ruled that some comments made by Walker in a telephone conversation he had with a licensed private investigator (PI) Wayne Idour in May 2011, were essentially unprofessional, but at the lower end of ‘offending’ against the code of conduct to which chartered accountants who are members of NZICA are bound to adhere to. Likewise, it found that Walker had erred with regard to two liquidation reports he had authored and submitted to the Registrar of Companies, detailing some of his “personal battle” (as NZICA put it) with Dave Henderson to try and extract from him documents and files essential for his liquidation task. (The NZICA appears to have ignored the fact that High Court judgments supporting Walker’s rights to access this information, opposed to by Henderson, included orders allowing Walker to access them. The “battle” between Walker and Henderson was already on the public record, in detail in court records! – see ref. below).
It was made clear at the DT, which was open to the public, that no penalty (or “fine”) was imposed on Walker as a result of its decision to uphold the findings of the PCC: that Walker had breached professional standards in respect of the two liquidation reports and the phone call (based on a transcript submitted by Hyndson). It must be emphasised that Walker did not accept the ruling of “guilt” issued by the PCC and upheld by the DT, supporting the reasons for his opposition to both findings with statements from his lawyer and an expert witness.
As a member of NZICA Walker was bound to pay for the “costs” of challenging the PCC findings, regardless of the outcome of the DT decision of “guilt” or “innocence”. It is well understood that if a member of NZICA wishes to contest a PCC ruling as a matter of principle that member has to pay the price of admission to the judicial process. That cost can be adjusted at the discretion of the DT. In Walker’s case it was reduced by 50% probably because his conduct was seen to have been at the lower end of potential breaches of the standards.
How could a Fairfax reporter bungle this story so badly and open himself and his media organisation to potential defamation?
The Fairfax headline on the story changed when it was published again two days AFTER (05:00 on 19/04/2014) the first reports – to “Liquidator ‘breached fundamental principles’”. It stated:
A liquidator who referred to South Island property developer Dave Henderson as a “little bastard” and a “buffoon” in a telephone conversation has been found guilty and ordered to pay costs.
Robert Walker had also detailed his personal battle with Henderson in official reports.
Walker denied charges this week that he had breached the professional standards of a chartered accountant.
The New Zealand Institute of Chartered Accountants heard a complaint brought by Ian Hyndman. In the complaint the Professional Conducts Committee [PSC] alleged that Walker was unprofessional during a telephone conversation and in two liquidator’s reports.
Source: http://www.stuff.co.nz/the-press/business/9958317/Liquidator-breached-fundamental-principles
None of the Fairfax reports or any other media coverage explained or clearly defined what the claimed “fundamental principles” were that Walker had allegedly breached. The nature of the complaints were hinted at only in terms of “tone” of language (“belligerent”) used in a phone call and a perception of lack of neutrality in his two liquidation reports.
What seems clear, but has NOT been dealt with by Fairfax Media, is that the submission of a transcript of a secretly recorded telephone conversation to the NZICA’s PCC, by Ian Bruce Hyndman, containing allegedly incriminating evidence of Walker’s alleged breaches of “professional standards”; was possibly unlawful under the Crimes Act 1961 (see ref. 1). It was also probably unprofessional in terms of the code of conduct a licenced private investigator (PI), who apparently obtained the recording by deception, is bound (see ref. 2). It had been obtained by Hyndman’s ‘hit man’ – a PI, Wayne Idour, who appears to have deceived Walker claiming he was representing creditors of the companies Walker was assigned as liquidator to, when he (Idour) was not.
Just who was the real paymaster behind what some might view as a nefarious operation, seemingly involving lies and deception and entrapment? Was it bankrupt David Ian Henderson as it was comments about him, made by Walker in May 2011, that seems to have largely prompted the complaints to the NZICA.
Robert Bruce Walker provided candid disclosure on his interaction with Wayne Idour in his Liquidation Report in April 2012 which stated:
To: Creditors and Shareholders of the Property Ventures Ltd Group (In Liquidation) and the Registrar of Companies.
The recording
It would seem that I am naïve even as I enter old age. I was approached by a man describing himself as a private investigator who gave his name as Wayne Idour. I did not recollect the name and should have done a Google search as I would have found interesting information on this person and I invite the reader to undertake such a search to understand the quality of this person.
In any event Idour gave me to understand that he represented people interested in recovering their money from the PVL fiasco. I have little recollection of exactly what I said, but I have no fear of it. I know what I say when having conversations of this nature. I am simply candid and, it would appear prone to profanity. I seem to have that in common with Kevin Rudd and Graham Henry.
I don’t have a copy of the recording or its related transcript. I have required both Idour and Henderson to supply me with copies or both in accordance with my rights under the Privacy Act. Idour did not respond and Henderson claims he is not an ‘agency’, an agency being the thing to which the Privacy Act applies. Henderson claims he is not an agency. As an agency is any person holding information I am not sure of his reasoning.
Not only does Henderson not provide me a copy, he has hawked the recording and its transcript around the various parties including Crown agencies, politicians and newspapers. From what I understand aside from some colourful metaphors and language the recording is uninteresting.
I repeat this story to demonstrate that Henderson always insists on his ‘rights’ but when it comes to other people’s he is wholly indifferent. Robert B Walker 30 April 2012
It is not hard to find material on Wayne Idour via google that raises questions about his activities as a licensed private investigator.
See http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10440075 http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10439767 http://briefingroom.typepad.com/the_briefing_room/2007/05/police_minister.html
Why would a professional body such as NZICA accept potentially tainted evidence from Hyndman and aid and abet an arguable criminal act (see ref. 1) involving the secret taping of a private conversation that may constitute entrapment and breaches of Robert Bruce Walker’s rights under the Privacy Act? Why has the ICA acted on a complaint over liquidation reports that at least one expert witness hailed as the work of a consummate professional whose attention to detail and integrity of analysis is second to none (or words to that effect)? Why has the NZICA apparently failed to take account of the judgments of the High Court (ref. 3) supporting Walker’s rights as liquidator under the Insolvency Act 2006 to access key files and documents from bankrupt David Ian Henderson and his business associate Ian Bruce Hyndman? Why has it apparently not recognised the mitigating factors that have pushed Walker to despair: the claimed thwarting of his efforts by Henderson to complete his challenging task as a liquidator dealing with one of the biggest bankruptcy cases in New Zealand history?
References:
1. Crimes Act 1961. Note: A question needs to be asked: Does the Crimes Act apply to circumstances such as these? The relevant section quoted below deals with the intercept of conversation and clearly applies to a conversation between two persons recorded, without their knowledge, by a third (see interpretation in s216A). However, it appears to be drafted to be much broader than the obvious circumstances to include a conversation between two person where one of them causes the “intercept”. If that is the case then s. 216C applies. It states:
216C Prohibition on disclosure of private communications unlawfully intercepted. Crimes Act 1961- (1) Subject to subsection (2), where a private communication has been intercepted in contravention of section 216B, every one is liable to imprisonment for a term not exceeding 2 years who intentionally—
- (a) discloses the private communication, or the substance, meaning, or purport of the communication, or any part of it; or
- (b) discloses the existence of the private communication,— if he or she knows that it has come to his or her knowledge as a direct or indirect result of a contravention of section 216B. (2) Subsection (1) does not apply where the disclosure is made—
- (a) to a party to the communication, or with the express or implied consent of such a party; or
- (b) in the course, or for the purpose, of—
- (i) an investigation by the Police into an alleged offence against this section or section 216B; or
- (ii) giving evidence in any civil or criminal proceedings relating to the unlawful interception of a private communication by means of an interception device or the unlawful disclosure of a private communication unlawfully intercepted by that means; or
- (iii) giving evidence in any other civil or criminal proceeding where that evidence is not rendered inadmissible by the Evidence Act 2006 or section 25 of the Misuse of Drugs Amendment Act 1978 or any other enactment or rule of law; or
- (iv) determining whether the disclosure is admissible in any civil or criminal proceedings.
http://www.legislation.govt.nz/act/public/1961/0043/latest/DLM329834.html
2. Private Security Personnel and Private Investigators (Code of Conduct – Surveillance of Individuals) Regulations 2011
6. Code of conduct: surveillance of individuals
- (1) A person to whom this code applies may—
- (a) undertake surveillance of an individual who is in a private dwelling only if—
- (i) every lawful occupier of the private dwelling has consented to the surveillance; or
- (ii) the surveillance is undertaken—
- (A) from a public place; and
- (B) without the use of any surveillance equipment; or
- (iii )the surveillance is undertaken using a tracking device that has been installed on or in any personal property in accordance with subclause (2)(c):
- (b)undertake surveillance of an individual who is in or on private property only if—
- (i) every lawful occupier of the private property has consented to the surveillance; or
- (ii) the surveillance is undertaken from a public place and the actions of the individual can be observed without the aid of any equipment (including a visual surveillance device) from that public place; or
- (iii) the surveillance is undertaken using a tracking device that has been installed on or in any personal property in accordance with subclause (2)(c):
- (c) undertake surveillance of an individual who is in any public place, or any part of a public place.
- (a) undertake surveillance of an individual who is in a private dwelling only if—
(2)A person to whom this code applies may, for the purpose of undertaking surveillance of any individual, install surveillance equipment—
- (a) in a private dwelling only if every lawful occupier of the private dwelling has consented to the installation of the equipment:
- (b) on or in any private property only if every lawful occupier of the property has consented to the installation of the equipment:
- (c) on or in any personal property only if either—
- (i) the owner of the property has consented to the installation of the equipment; or
- (ii) the person who is lawfully entitled to the possession of the property has consented to the installation of the equipment.
(3) A person to whom this code applies (person A) must not cause any other person (person B) to act on behalf of person A in a way that person A is not permitted to act under subclause (1) or (2).
http://www.legislation.govt.nz/regulation/public/2011/0072/latest/DLM3609033.html
3. Judgment of Associate Judge Osborne as to document applications. 18 March 2014 (CIV-2010-409-000559 [2014] NZHC 499)
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