22 DECEMBER
NEW ZEALAND GAZETTE
4637

48.5 The Business Conduct Committee may in its discretion, upon application by a Dealer or a client of a Dealer, make a ruling as to the interpretation or application of these Rules and any such ruling shall be binding upon the Dealer and the client and upon all persons claiming through or under the Dealer; provided that the Dealer or client may appeal against the ruling in the manner prescribed in Rule 51.

49. PROCEDURES AND GENERAL POWERS

49.1 Reference to the Business Conduct Committee may be made by:

(a) the Company in respect of any matter concerning the conduct of a Dealer; or

(b) the Company in respect of the approval of any Trading System Operator; or

(c) a Dealer whenever these Rules provide for such a reference; or

(d) a complainant under Rule 25; or

(e) the Securities Commission.

49.2 When a reference is made to the Business Conduct Committee under Rule 49.1, unless the Dealer has already given the Committee its comments on any report in respect of the matter or the complaint by the Company or by any agent of the Committee, the Committee shall, subject to Rule 49.3, notify the Dealer in writing of the allegations or complaint made against it, inviting the Dealer to state, in writing, within such time as the Committee specifies, whether it agrees with any of the facts or allegations set out in the notice and, if so, whether it accepts that they or any of them constitute a breach of these Rules.

49.3 Notwithstanding Rule 49.2, the Business Conduct Committee shall not be required to disclose the identity of an informant, or to furnish any information which might lead to such disclosure, where the Committee is of the view that to do so would inhibit or prejudice the Company or the Committee or any other committee established under these Rules in carrying out its duties.

49.4 The Business Conduct Committee when considering any matter under these Rules, may regulate its sittings and adopt such procedures as it thinks fit provided that:

(a) the Committee shall be governed by the rules of natural justice and shall give each party a reasonable opportunity to make written or oral representations, to call witnesses, and to cross examine any witness called against it;

(b) the Committee may appoint an assessor to assist it in its deliberations;

(c) the Committee may determine a matter on written representations if, having regard to the nature and gravity of the dispute, it is satisfied that it is suitable for such determination and, in the case of a complaint, the parties consent to such a procedure being adopted;

(d) in determining a matter by way of oral hearing, the Committee:

(i) shall hear the matter in private, unless the Committee is of the opinion that the case is appropriate for public hearing;

(ii) may at its discretion permit the parties to be legally represented and to call witnesses to give evidence before it;

(e) the Committee shall not be bound by any enactment or rule of law relating to the inadmissibility of evidence in proceedings before any court of law, but shall accept as conclusive any finding of fact made by such a court;

(f) where a reference against a Dealer is found to be proved, which shall be on a balance of probabilities, the Committee shall, before taking any action under Rule 49.5:

(i) provide the Company with an opportunity to put before the Committee any matters known about the Dealer that may affect its decision; and

(ii) allow the Dealer, or anyone on its behalf, to address the Committee in mitigation of penalty.

49.5 The Business Conduct Committee, after considering any matter referred to it, or investigating any matter of its own volition, may:

(a) decide that no action should be taken;

(b) issue a private warning or reprimand;

(c) issue a notice of censure;

(d) issue such recommendations, or give such advice, or issue such directions to remedy any matter revealed in the evidence or contained in any reports submitted to the Committee, as it sees fit;

(e) fine a Dealer in such amount as the Committee considers appropriate;

(f) recommend to the Company that any reports or any extract or summary thereof, or any finding of, or sanction imposed by, the Committee be published under Rule 49.11;

(g) direct that a Dealer shall not accept Business from any new clients without the express consent of the Committee;

(h) make a termination order or suspension order under Rule 50;

(i) direct, by way of a compensation order, that the Dealer recompense any client who has suffered a readily determinable loss arising as a direct result of any matter on which the Committee has adjudicated and in respect of which the Dealer is at fault;

and shall make a written record of any action so taken.

49.6 If any party fails to attend a hearing before the Business Conduct Committee, the Committee may adjourn the hearing, or proceed in the absence of the complainant or the Dealer unless it appears to the Committee that there are reasonable grounds for the absence.

49.7 The Business Conduct Committee shall give written notice of its findings in respect of any matter and of any action taken under Rules 49.5, 49.13 and 49.14 to the Company and to the parties concerned, informing the parties, where appropriate, of their right of appeal under Rule 51.

49.8 Where any matter concerning a Dealer is under consideration by the Business Conduct Committee or the Appeal Board under these Rules the Dealer shall cooperate in any investigation carried out with regard thereto:

(a) by providing all information, papers and documents concerning the matter which are in the possession or under the control of the Dealer; and

(b) by rendering all such assistance as may be reasonable and necessary to enable the matter to be fully investigated.

49.9 If no notice of appeal is lodged by the Dealer or a complainant concerned under Rule 51 the findings of, or any action taken by, the Business Conduct Committee shall be deemed conclusive and binding upon the Dealer.