1. Subsection 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) provides:
   • (2) The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.

1. The prima facie position is that the making of an application to the Tribunal does not affect the operation of the decision under review - subsection 41(1) of the Act.
2. In Australian Securities and Investments Commission v Administrative Appeals Tribunal and Another,[4] the Full Court of the Federal Court considered the powers given to this Tribunal by subsection 41(2). The Full Court said, in part:
   1. The power in s 41(2) of the AAT Act is to make an order staying or otherwise affecting the operation or implementation of a decision under review. The power is conditional on the making of a request and the holding of an opinion by the AAT. The required opinion is that it is desirable to make the order. The AAT may only form this opinion after taking into account "the interests of any persons who may be affected by the review"...
   2. The nature of the decision under review will affect the identification of the "interests of any persons who may be affected by the review" ...
   3. ... For the AAT to form an opinion under s 41(2) of the AAT Act (that it would be desirable and in the "interests of any persons who may be affected by the review" to make an order staying or otherwise affecting the operation or implementation of ASIC's decision) these elements of the statutory regime, and the balance between the competing interests that they represent, must be treated as a fundamental element in the weighing of the competing considerations...

1. I accept the proposition put by the Commission that, in deciding an application under subsection 41(2), it is appropriate for the Tribunal to have regard to the following issues:
   • (a) the applicant's prospects of success on the review application;
   • (b) the consequences for the applicant if a stay is refused;
   • (c) the public interest;
   • (d) the consequences for ASIC in carrying out its functions depending on whether a stay is granted or not;
   • (e) whether the application for review would be rendered nugatory if the stay were not granted;
   • (f) other matters, including the length of time that the ban has already been in place and the time until the review application is likely to be heard.[5]

1. On the evidence available and without the Applicant being cross-examined I was unable to form a view as to his prospects of success. As the Commission acknowledged, it is not for the Tribunal to attempt to conduct a preliminary trial of the issues in a case such as this. It does not appear to be in dispute that both Company A and Company B failed, owing the Australian Taxation Office very significant sums for unpaid tax and, in one case, payments of Goods and Services Tax collected on behalf of the Commissioner of Taxation. However, there may be many other factors to be taken into account on the final hearing.
2. On the evidence available, it is likely that the Applicant's business interests will be significantly adversely affected before the final hearing should the stay not be granted. However, in view of the publicity given to the Applicant's business affairs and his own comments to the media, I do not take the possible effect on the Applicant's reputation in this case.
3. In my view, the question of the public interest is a major consideration in this application. It may not always be of such importance in other matters involving different factual situations.
4. The Applicant has controlling interests in the group of companies to which I have referred, including the companies involved in major development projects. As was pointed out on behalf of the Commission, if the Applicant was to act in the way he is alleged to have acted in the past, it would have significant consequences for government revenue and thus the public interest. It was put that "the public is prima facie entitled to be protected against the misuse of the corporate structure by directors who fail to maintain proper standards of transparency and accountability, and fail to ensure compliance by companies with their obligations.[6]
5. It was also put that there is a public interest in the Commission being able to discharge its statutory functions of maintaining proper standards in commercial and financial dealings. To prevent the Commission immediately publicising its decision in relation to the Applicant would risk creating the impression within the public at large that its decisions are merely provisional.
6. Notwithstanding these considerations, which are of considerable weight, in this case they are outweighed by the public interest in protecting the employment of those employees of the companies and contractors working on the developments and the contractual interests of those who have purchased properties off the plans.
7. In reaching this conclusion I have taken into account that, on the evidence available, negotiations for the financing of the projects appear to be at a critical stage. Public notification of the decision of the Commission pending the Tribunal's review is likely to have serious consequences for the continuation of the projects, at least causing significant delays.
8. It is important that this matter can be heard by the Tribunal and a final decision made without delay. The decision under review was made on 29 October 2015. The Applicant applied for a review on 6 November 2015, immediately he was notified of the decision. The Tribunal was in a position to hear the substantive application for review from mid-January 2016 onwards. To suit the convenience of the parties the matter was set down for hearing on 8 and 9 February 2016.
9. I note from the Commission's submissions that Company A was wound up on 22 February 2013 and that on 30 January 2014 the liquidator lodged with the Commission a report estimating that the dividend payable to unsecured creditors may be 20 to 50 cents in the dollar. Company B was wound up on 5 July 2013 and a report as to dividends likely to be paid (0 to 10 cents in the dollar) was received by the Commission on 3 September 2013. The first notice to the Applicant was given by the Commission on 5 March 2015 and he was notified of the decision to disqualify him on 6 November 2015.
10. In circumstances where the application for review was made promptly, the relatively short time which will elapse before hearing and final decision supports the making of the stay order. On the evidence before me in this application I cannot accept the argument of the Commission that it, or the public interest, will be adversely affected by a further lapse of three to four months in publicising its decision, should it be affirmed on review.
11. As to the Commission's concern that decisions of its delegates may be seen as "merely provisional" [7], the fact is that the delegates' decisions are subject to review just as the decisions of the Tribunal are subject to appeal. I do not accept that the delay will cause members of the public to consider the delegates' decisions to be "provisional". In my view it would be more damaging to the reputation of the Commission to have its decision publicised and then set aside, if that was the Tribunal's decision.

1. The stay orders sought by the Applicant should be made.

I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of

............... [SGD].....................................

N Goodstone; Australian Securities and Investments Commission

[1] Statement filed 9 November 2015 para. 20.

[2] Statement filed 9 November 2015 para. 27.

[3] Statement filed 9 November 2015 para. 35.

[4] [2009] FCAFC 185.

[5] Respondent's written submissions para.12, referring to Scott v Australian Securities and Investments Commission [2009] AATA 798 para.4; XTWK v Australian Securities and Investments Commission [2007] AATA 1890 para.14; Opus Capital Limited v Australian Securities and Investments Commission [2010) AATA 694 para.14.