PRACTICE AND PROCEDURE - STAY APPLICATION - BANNING ORDER - Banning order under s 920A of the Corporations Act - whether stay necessary to secure effectiveness of hearing and determination of the application for review - prospects of success - prejudice to parties - public interest - whether the review application would be rendered nugatory - applicant banned by ASIC from providing financial services for 12 months - relevance of impact on third parties - stay applications granted - application for non-publication and confidentiality order - confidentiality orders granted - power of Tribunal to make order restraining ASIC from complying with statutory obligations to publish decision on ASIC register

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Securities and Investments Commission Act 2001 (Cth)

Corporations Act 2001 (Cth)

Corporations Regulations 2001 (Cth)

Australian Securities and Investments Commission v Adler [2002] NSWCA 483; 42 ACSR 80

Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185; 181 FCR 130

Australian Securities and Investments Commission v Beekink [2007] FCAFC 7

Australian Securities and Investments Commission v Forex Capital Trading Pty Limited, in the matter of Forex Capital Trading Pty Limited [2021] FCA 570

Australian Securities and Investments Commission v McCormack [2017] FCA 672 Australian Securities and Investments Commission v PTLZ [2008] FCAFC 164; (2008) 48 AAR 559

Hull v Thompson [2001] NSWCA 359

Levi v Companies Auditors and Liquidators Disciplinary Board [2013] FCA 719 LZ15 and Australian Securities and Investments Commission (2016) 152 ALD 594 Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234; 261 ALR 382

Mawhinney v Australian Securities and Investments Commission [2022] FCAFC 159 McCormack and Australian Securities and Investments Commission [2016] AATA 1021 McLean and Australian Securities and Investments Commission [2016] AATA 22

Minister for Immigration and Multicultural and Indigenous Affairs v X [2005] FCAFC 217

Nathanson v Minister for Home Affairs [2022] HCA 26

Opus Capital Limited and Australian Securities and Investments Commission [2010] AATA 694; 117 ALD 608

PQHL and Australian Securities and Investments Commission [2015] AATA 1032

Re Dart and Director-General of Social Services (1982) 4 ALD 553

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Re PTLZ and Australian Securities and Investments Commission (2008) 100 ALD 648; (2008) 47 AAR 247; [2008] AATA 106

Re Scott and Australian Securities and Investments Commission [2009] AATA 798

Re Su and Tax Agents' Board of South Australia [1982] AATA 127; (1982) 61 FLR 1

Registrar of Aboriginal and Torres Strait Islander Corporations v Matcham (No 2) [2014] FCA 27

Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129

Sahai and Australian Securities and Investments Commission [2021] AATA 590

Van Dieren and Australian Securities and Investments Commission [2019] AATA 4777

XQZT v Australian Securities and Investments Commission [2009] AATA 669

XTWK and Australian Securities and Investments Commission [2008] AATA 703; (2008) 105 ALD 596

Yorke v Lucas [1985] HCA 65

Zong v Lin [2022] NSWCA 136

Australian Securities and Investments Commission Regulatory Guide 98: ASIC's powers to suspend, cancel and vary AFS licences and make banning orders

1. Between 2012 and 2019 the Applicant was employed as a private client adviser and senior investment adviser at Company X.[1]
2. Currently the Applicant is employed at Company Y .
3. The Applicant has been in the financial services industry since 1994.[2]
4. Whilst employed by Company X the Applicant worked closely with a relative, MCF. This matter relates to the Applicants conduct during their employment at Company X.
5. Following an investigation, the Australian Securities and Investment Commission ("ASIC") decided to ban the Applicant from providing financial services for twelve months pursuant to sections 920A and 920B of the Corporations Act 2001 ("Banning Decision").
6. A copy of the banning order was sent to the Applicant on 5 August 2022 as required by section 920A(4) of the Corporations Act.[3] The banning order provides that ASIC prohibits the Applicant from:

(b) controlling, whether alone or in concert with one or more other entities, an entity that carries on a financial services business; and

(c) performing any function involved in the carrying on of a financial services business (including as an officer, manager, employee, contractor or in some other capacity);

1. The Applicant has appealed ASIC's decision and has made an interlocutory application for a stay of ASIC's Banning Decision pending the hearing and decision of the Administrative Appeals Tribunal.[4] The Applicant also seeks non-publication and confidentiality orders.
2. The Tribunal has jurisdiction to review the Banning Decision pursuant to section 25 of the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act") and section 1317B of the Corporations Act.

1. The basis for ASIC's decision to suspend the Applicant from providing financial services is not related to their competency or the quality of their work but rather to whether they are a fit and proper person as a result of a purported "cover up" of MCF's dealings.
2. MCF retired in June 2017. Despite his retirement, it is not in dispute that MCF continued to offer financial advice to a number of his former clients in contravention of section 911A(1) of the Corporations Act (by carrying on a financial services business without an Australian financial services licence). ASIC found that the Applicant was aware this was happening and was "knowingly concerned" in MCF's actions or, if you like, "aided and abetted him" by covering for him.
3. Pursuant to section 79 of the Corporations Act, a person is involved in a contravention if, and only if, the person:

(a) has aided, abetted, counselled or procured the contravention; or

(b) has induced, whether by threats or promises or otherwise, the contravention; or

(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the contravention; or

(d) has conspired with others to effect the contravention.

1. ASIC contends the Applicant's conduct contravenes the Corporations Act as follows:[5]
   • 12.1 section 920A(1)(g) - the Applicant may have been involved in the contravention of a financial services law by another person;
   • 12.2 section 920A(1)(d) - the Applicant is not a fit and proper person to provide one or more financial services, perform one or more functions as an officer of any entity that carries on a financial services business and/or control an entity that carries on a financial services business;
   • 12.3 section 920A(1)(da) - the Applicant may not be adequately trained, or is not competent, to provide one or more financial services, perform one or more functions as an officer of any entity that carries on a financial services business and/or control an entity that carries on a financial services business; and
   • 12.4 section 920A(1)(f) - the Applicant is likely to contravene a financial services law.

1. Following its investigation, on 24 March 2022 ASIC issued a notice to the Applicant stating it had concerns about whether they should be banned from providing financial services, controlling an entity that carries on a financial services business and performing any function involved in the carrying on of a financial services business.[6]
2. ASIC invited the Applicant to appear at a hearing to demonstrate why they should not be banned. The Applicant appeared at the hearing with legal representation and provided written submissions and witness statements.
3. For the ASIC hearing MCF provided a statement acknowledging that he continued to provide advice to a certain client in the same way they had before their retirement. MCF explained that they placed trades with Company X by giving instructions to their former assistant at Company X (who also happened to be the Applicant's assistant at Company X).
4. ASIC found MCF's conduct was in breach of section 911A(1) of the Corporations Act.[7]
5. There was evidence before the ASIC hearing that the Applicant had been copied into emails between MCF and some of their former clients and that MCF had sent the Applicant trading instructions.
6. The Applicant contended, among other things, that ASIC's power to make a banning order was not enlivened, and, even if it was, they should not be banned because:
   • 18.1 it is a precondition to finding the Applicant was involved in the contravention, that there was a contravention by MCF; and
   • 18.2 although they were aware MCF was providing advice, they believed this had been authorised by Company X.
7. The ASIC delegate accepted the Applicant believed others at Company X, including his superiors, had some knowledge of MCF's conduct. However, ASIC found that the Applicant still bore some responsibility. The ASIC delegate found that the Applicant was "knowingly concerned" in MCF's contravention (section 79(c) Corporations Act). The High Court has held that a person is "knowingly concerned" and a party to a contravention if they are "an intentional participant, the necessary intent being based upon knowledge of the essential elements of the contravention."[8]

1. With some exceptions which are not relevant here, a person who carries on a financial services business in this jurisdiction must hold an Australian financial services licence covering the provision of the financial services (section 911A).
2. Only "fit and proper" people can be granted a financial services licence (section 913BA)
3. Section 912A of the Corporations Act sets out a financial service licensee's mandatory obligations, which are, among other things to:

(a) do all things necessary to ensure that the financial services covered by the licence are provided efficiently, honestly and fairly; and

(c) comply with the financial services laws_; and_

(e) maintain the competence to provide those financial services_; and_

Australian Securities and Investments Commission Act 2001

1. Two of ASIC's statutory obligations in carrying out its duties and exercising its powers are to (section 1(2) ASIC Act):

(e) maintain, facilitate and improve the performance of the financial system and the entities within that system in the interests of commercial certainty, reducing business costs, and the efficiency and development of the economy; and

(f) promote the confident and informed participation of investors and consumers in the financial system...

1. One of the critical underlying purposes of the ASIC Act is the objective of protecting the public from harm.[9]

1. ASIC'S power to make a banning order comes from section 920A of the Corporations Act which provides relevantly:

Making a banning order > > (1) ASIC may, in writing, make one or more orders ( banning orders ) against a person if:

1. ASIC has reason to believe that the person is not a fit and

(i) provide one or more financial services_; or_

(ii) perform one or more functions as an officer of an entity that carries on a financial services business_; or_

(iii) control an entity that carries on a financial services business_;_

(da) ASIC has reason to believe that the person is not adequately training, or is not competent, to:

(i) provide one or more financial services_; or_

(ii) perform one or more functions as an officer of an entity that carries on a financial services business_; or_

(iii) control an entity that carries on a financial services business_; or_

(f) ASIC has reason to believe that the person is likely to contravene a financial services law_; or_

(g) the person has been involved in the contravention of a financial services law by another person_; or_

(1A) For the purposes of paragraph (1)(d), ASIC must have regard to the matters in section 913BB.

When a person contravenes a financial services law

(1B) To avoid doubt, a person contravenes a financial services law if a person fails to comply with a duty imposed under that law, even if the provision imposing the duty is not an offence provision or a civil penalty provision_._

1. ASIC must have regard to the matters set out in section 913BB of the Corporations Act in determining whether a person is fit and proper.
2. A banning order may prohibit a person from (s 920B(1)):
   • 27.1 providing any financial services;
   • 27.2 providing specified financial services in specified circumstances or capacities;
   • 27.3 controlling, whether alone or in concert with one or more other entities, an entity that carries on a financial services business;
   • 27.4 performing any function involved in the carrying on of a financial services business (including as an officer, manager, employee, contractor or in some other capacity);
   • 27.5 performing specified functions involved in the carrying on of a financial services business.
3. The effect of a banning order is that (s 920C) the Applicant cannot be granted a financial services licence. Pursuant to section 920C, conduct contrary to the Banning Decision constitutes an offence.
4. A banning order takes effect from the date it is given to the person (s 920E).
5. Once a banning order has been made, ASIC must publish a notice in the Gazette as soon as practicable (s 920E(2)). ASIC is also obligated under section 922A of the Corporations Act and regulation 7.6.06 of the Corporations Regulations 2001 (Cth) to maintain records relating to financial services including the following details for each person against whom a banning order is made in the register of persons against whom a banning order under Division 8 of Part 7.6 of the Act is made:

(a) the person's name;

(b) the day on which the banning order took effect;

(c) whether the banning order is permanent or for a fixed period;

(d) if the banning order is for a fixed period--the period;

(e) the terms of the banning order;

(f) whether the banning order has been varied or cancelled;

(g) if the banning order has been varied:

(i) the date of the variation; and

(ii) the terms of the variation;

(h) if the banning order has been cancelled--the date of the cancellation;

(i) any other information that ASIC believes should be included in the register.

1. A banning order is directed to protecting the public interest by ensuring that only those who are competent, and fit and proper can provide financial services.
2. The primary purpose of a banning order is to protect the public from harm. Banning orders also play a role in acting as a personal and and general deterrence[10] and are important factors to be taken into account.[11]
3. In Australian Securities and Investments Commission v Forex Capital Trading Pty Limited, in the matter of Forex Capital Trading Pty Limited [2021] FCA 570, Middleton J, said in the context of a disqualification order, that it "protect[s] the public and further[s] the objectives of personal and general deterrence".[12]

1. On 10 August 2022 the Applicant applied to this Tribunal for review of the Banning Decision.[13]
2. The Applicant also filed two interlocutory applications:[14]
   • 35.1 A stay application of the Banning Decision pursuant to section 41(2) of the AAT Act pending the hearing and final determination of their application including an order restraining ASIC from issuing any press release or other notification with respect to the Banning Decision until the determination of the review;
   • 35.2 An application for non-publication orders and confidentiality orders pursuant to section 35(2) and 35(3) of the AAT Act.
3. The Applicant seeks stay orders on the grounds that:[15]

(a) [their] Application for Review has strong prospects of success;

(b) [they] will face irremediable prejudice if the stay is not granted in the form sought;

(c) the public interest does not weigh against the granting of that relief;

(d) ASIC will suffer no real prejudice if the relief is granted;

(e) the Application for Review will be rendered nugatory if the orders sought are not granted; and

(f) [they] can proceed expeditiously to a final hearing.

1. The Applicant seeks confidentiality and non-publication orders because:[16]

(a) their reputation will be irremediably harmed; and > > (b) their Application for Review will otherwise be rendered nugatory.

2. ASIC is not opposed to a stay of the Banning Decision provided there is a condition attached. The condition ASIC submits should be imposed is an obligation for the Applicant to inform (via letter) their current, and any future clients, of the Banning Decision, the stay and the fact that they has appealed the decision. ASIC also submits it should still be able to publish the decision on the register, albeit with a notice that the decision has been stayed pending appeal.
3. ASIC opposes the non-publication and confidentiality orders sought by the Applicant.
4. An interim stay and non-publication order in relation to the Banning Decision has been in place since 19 August 2019. At the hearing of the stay application the parties agreed that those interim orders should remain in place pending this decision.
5. The interlocutory applications were heard together.

1. The issues for the Tribunal are whether, pending a final determination of the application for review:
   • 42.1 pursuant to section 41(2) of the AAT Act, to grant a stay:
     • 42.1.1 of the Banning Decision;
     • 42.1.2 of the gazettal of, or the issue of any press release about, the Banning Decision; and
   • 42.2 a non-publication and/or non-disclosure order should be made pursuant to sections 35(2) and 35(3) of the AAT Act.
2. As the matter is at an early stage the relevant documents under section 37 of the AAT Act (referred to as T Documents) had not been filed at the date of the hearing. However, the Tribunal had the following material before it:

1. The Tribunal was well assisted by both parties in their written and oral submissions.

1. The power of the Tribunal to grant a stay of the operation or implementation of a reviewable decision, derives from section 41(2) of the AAT Act which provides:

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. Pursuant to section 41(6) of the AAT Act, a stay order may be made subject to conditions.
2. Stays are not automatically granted (s 41(1) of the AAT Act). Without the grant of a stay the appealed decision takes effect and may be implemented.
3. The immediate effect of the Banning Decision being implemented is that the Applicant will be prohibited from providing financial services, and the banning order will be published.
4. An issue raised by ASIC was whether the power to order a stay extends to the staying of any action taken by ASIC to publicise the banning order, such as the issue of a press release. This was a matter considered in Re PTLZ and Australian Securities and Investments Commission (2008) 100 ALD 648; (2008) 47 AAR 247; [2008] AATA 106 ("Re PTLZ") by Deputy President Forgie, who concluded that if the issue of a press release can be regarded as part of the implementation of a decision then the s 41(2) power extends to include such action. Re PTLZ was upheld on appeal to the Full Federal Court in Australian Securities and Investments Commission v PTLZ [2008] FCAFC 164; (2008) 48 AAR 559.
5. In Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185 ("ASIC v AAT") the Full Federal Court held (at [71]) that s 41(2) enables the AAT to make an order under s 41(2) of the AAT Act staying or otherwise affecting ASIC's actions under ss 920E(2) and 922A(1) of the Corporations Act.
6. It was not in dispute at the hearing that the Tribunal was empowered to make an order under section 41(2) to stay the gazettal of the Banning Decision and to stay any press release concerning the decision.[17]
7. The factors relevant to the exercise of the discretion to grant a stay are:[18]

• 52.1 the prospects of success of the substantive application for review;
• 52.2 the consequences to the Applicant if the request for a stay is refused;
• 52.3 the public interest;
• 52.4 the consequences for ASIC in carrying out its functions; and
• 52.5 whether the substantive application for review would be rendered nugatory if the request for a stay order were not granted.

The prospects of success of the substantive application for review

1. It is trite to say that in considering prospects of success, it is not the role of this Tribunal to conduct a "mini trial" on the merits. The Applicant must merely show that they have an arguable case and a basis for their application.[19]

1. The Applicant submits their appeal against the Banning Decision has real prospects of success. The Applicant says the conduct alleged by ASIC does not justify the Banning Decision and ASIC did not take into consideration relevant evidence and submissions made by their legal representatives at the ASIC hearing. In particular the Applicant submits they have strong prospects of success because:[20]
   1. [The Applicant] submits that the Review Application case has not just some, but rather strong, prospects of success. That is so because:

(a) The Delegate's Decision displays a disturbing failure to grapple with the submissions that were made on [the Applicant's] behalf. For example, the important legal submissions as summarised at paragraphs 12 and paragraph 16 of the outline of submissions dated 30 May 2022 were seemingly ignored or forgotten by the delegate. Similarly, [the Applicant's] detailed submissions about what represents an appropriate regulatory outcome in all the circumstances as outlined at paragraphs 58 to 63 of the outline of submissions dated 30 May 2022 are not addressed at all in the Delegate's Decision. When reading the Delegate's Decision, it also appears that the delegate failed to take into account the supplementary submissions that were made after the hearing by way of letter from [the Applicant's] solicitors dated 1 July 2002 (sic).

(b) Insofar as the delegate premised his conclusions on his finding that [the Applicant] deleted an email to [a client] dated 18 July 2019 and that fact is "highly suspicious" and evidence of [the Applicant] trying to "cover [their] tracks", that was finding (sic) made without a proper evidentiary foundation and is perverse. Further, the finding at [73] that [the Applicant's] conduct potentially left [Company X] exposed to a claim of unauthorised trading and breaching privacy obligations was not open to delegate in light of the evidence provided by [MCF] and the relevant Clients. It is also a conclusion wholly inconsistent with the delegate's findings summarised at paragraph 27 above.

(c) When assessing whether ASIC had reason to believe that [the Applicant] is not a fit a proper person, the delegate applied the wrong test. The delegate was required to consider whether [the Applicant] is now a fit and proper person: Lee and ASIC [2021] AATA 4048, [32] (Retiano M). The material before the delegate undoubtedly confirmed that [the Applicant] is now fit and proper.

(d) The Delegate's Decision discloses a fundamental misunderstanding of the purpose that is to be served by the making of a banning order under s 920A of the Corporations Act. The primary purpose that is served by the making of banning order is the protection of the public: Re Howarth and ASIC [2008] AATA 278; (2008) 101 ALD 602, [180] (Forgie DP). Given that the delegate expressly accepted that the risk to the public from [the Applicant] continuing to provide financial services was low and the undertakings that had been offered up by [the Applicant] as an alternative regulatory response to ASIC's concerns, there was no proper basis for the making of a banning order.

1. The submissions made for the ASIC hearing concerned:
   • 56.1 whether there had been a formal finding of a contravention by MCF, without which the Applicant submits ASIC's power is not enlivened;
   • 56.2 ASIC's failure to demonstrate the Applicant was "knowingly concerned" in any contravention as required by section 79 of the Corporations Act;
   • 56.3 whether the banning order is excessive in the circumstances where the Applicant has not engaged in criminal conduct, there has been no deliberate misconduct, or conduct involving a high level of recklessness. "At its highest, and assuming ASIC does not accept that belief as to the arrangement between [Company X] and [MCF] was reasonable, this case is about an individual whose conduct is best described as unfortunate and never likely to be repeated again."[21]

1. ASIC submits the Applicant does not have "strong prospects" of outright success and/or of achieving a reduction to the banning period.[22]
2. ASIC submits the Applicant's prospects are neither strong nor weak.[23]

1. The conduct ASIC is concerned with relates to a period during which MCF continued to communicate with former clients although no longer an authorised representative. The Applicant, ASIC alleges, knew of MCF's conduct. The Applicant told the ASIC hearing that they paid "little interest" in their relative's communications as they were not relevant to [them].[24]
2. ASIC says the Applicant provided MCF with client documents, personal information, and investment information. The Applicant then made trades on those clients' behalf. ASIC notes that the Applicant has stated that they always personally communicated with the clients regarding all trades.
3. According to ASIC the "basic facts are not contested"[25]. The Applicant does not agree, and they deny among other things that:
   • 61.1 they had a lack of care or disregard for compliance;
   • 61.2 they knew the services provided by MCF had not been authorised by Company X; and
   • 61.3 they deleted client communications in a purported cover up.
4. The Applicant submits that they were not involved in MCF's contravention.[26] The Applicant has stated that they believed their former employer was aware of, and hence had agreed or authorised, MCF to continue communicating with their former clients.[27]
5. Despite the Applicant's assertions, the delegate found that the Applicant knew of and actively facilitated MCF's contravention of s 911A of the Act.[28]
6. The delegate determined that a banning order was appropriate, not only to achieve specific deterrence, but that it also acted as a general deterrence. [29]
7. ASIC doubts the veracity of some of the evidence given by the Applicant at the ASIC hearing. It is not this Tribunal's place to make any findings of fact or findings of credibility for the purpose of the stay application. Obviously if the Applicant were to be believed, it could have a significant impact on whether the banning power was enlivened and/or whether the banning order is appropriate. There is a "realistic possibility that a different decision could [be] made" at a final hearing concerning the conduct of the Applicant.[30] However, the proper place for determining the credibility of the Applicant's evidence is at the merits review of the substantive proceeding.[31]
8. The parties dispute the strength of their respective arguments, whether the delegate applied the law correctly and so on. Given the fact that ASIC is prepared to accept a conditional stay, and the fact that an appeal from the delegate's decision is not an assessment of whether the delegate's decision was the correct of preferrable one, I do not propose to transverse every argument raised. Suffice it to say that the Applicant has raised issues which have a "realistic possibility" of affecting the outcome.[32]
9. I am unable to determine the extent of the Applicant's prospects. However, I accept that they have an arguable question to be determined. The Tribunal is satisfied that the Applicant has an arguable case.

The consequences to the Applicant if the request for a stay is refused

1. The Applicant wants to keep working in their current role at Company Y. Even though the banning order is for a shorter period of time, the effect of its implementation could be the end of the Applicant's career (as least as they currently know it). In addition to their own affidavits the Applicant relies on affidavits from their spouse and Mr HC (the head of compliance at the parent company of Company Y).
2. The Applicant submitted that if the stay was refused there would be professional and personal consequences. The Applicant provided the following evidence for why a stay order and nonpublication order should be made:[33]
   • 69.1 they have over 20 years' experience as a financial services advisor and are not qualified for any other work;
   • 69.2 they have a young family who will require financial support for some time;
   • 69.3 they have already suffered because of ASIC's investigation by having to resign from Company X;
   • 69.4 having to rebuild at Company Y has cost them significantly financially;
   • 69.5 their employment with Company Y will be terminated in the event of a conditional stay requiring them to send a letter to clients informing them of the Banning Decision;
   • 69.6 they are responsible for making the mortgage repayments on the family home and;
   • 69.7 the costs of running a household are approximately $180,000 per annum and school fees per annum total approximately $100,000;
   • 69.8 their previously untarnished reputation will be destroyed - "word spreads quickly" in the industry;
   • 69.9 they will lose their client base and it will be difficult to attract clients in the future;
   • 69.10 they will likely need to sell the family home, remove children from their schools and borrow money;
   • 69.11 [redacted]
   • 69.12 [redacted][34]
   • 69.13 their children will experience stress and shame;
   • 69.14 [redacted]
   • 69.15 [redacted]
3. The Applicant says the consequences will be significant and irreparable.
4. The Applicant provided the Tribunal with an update on the status of their employment circumstances with Company Y and their proposed approach to work with Company Y and the servicing of their clients should the Tribunal grant a stay order.
5. The Applicant states that Company Y has indicated that if the Applicant was required to send the letter proposed as a condition to a stay by ASIC, it would immediately terminate their employment.[35] Company Y is not prepared to have a letter of the nature proposed by ASIC sent on its letterhead.
6. The Applicant pointed out that ASIC's proposed letter is deficient in that it does not provide the reader with all relevant factual circumstances, and that the letter will generate a negative perception of them which will be impossible for them to overturn. The Applicant believes that if the stay order is not granted:
   • 73.1 their career as a financial service provider will be ruined;
   • 73.2 any public announcement of a banning order from ASIC will have an irreparable and damaging impact on their reputation in the small stockbroking industry; and
   • 73.3 their reputation will be forever tarnished and their career as a financial advisor will be irretrievably damaged.
7. The Applicant states that if a stay order is granted they will provide an undertaking that they will not engage any new clients until a final determination is made. Further, the Applicant says they will "only... provide financial advice to existing clients where it is necessary to do so due to client needs and in order only to maintain the status quo of the client relationship and ensure that my clients are properly advised"[36] and will not "actively pursue any corporation securities issues with or for clients or any Initial Public Offering opportunities"[37].
8. The majority of the Applicant's clients have been with them for more than 10 years. They have received no complaints from clients.

1. The Applicant's spouse deposed that:[38]

• 76.1 The Applicant is the primary breadwinner for the family;
• 76.2 the process has placed a huge strain on their relationship;
• 76.3 they have suffered financial consequences because of the Applicant having to resign from Company X, including having to sell shares, and because the Applicant is earning less income in their first year at Company Y;
• 76.4 they have had to cancel a family holiday;
• 76.5 if the Banning Decision was to be made public it would cause enormous emotional distress to the family and the Applicant's reputation would be destroyed;
• 76.6 people in the community would assume the Applicant committed a criminal offence, and they would no doubt be gossiped about by their children's friends and families;
• 76.7 the children will suffer and be caused a lot of stress and anxiety;
• 76.8 [redacted]
• 76.9 they may not be able to continue to live in their current dwelling or send their children to their current private schools which would be very destabilizing for the children; and
• 76.10 they would need to return to full-time work and would no longer be able to assist their current elderly employers for whom they manages their financial and administrative aspects of their lives.

1. The head of compliance for the parent company of Company Y ("Mr HC") also provided an affidavit in support of the Applicant. Mr HC deposed:
   • 77.1 he was aware of the Banning Decision; and

• 77.2 he provided a witness statement for the purposes of the ASIC hearing.[39]

1. Mr HC explained:[40]
   • 78.1 in his opinion if the banning order was not stayed, "the impacts will be immediate and could very well be irremediable for [the Applicant]" because once the banning order comes into effect and is made public:
     • 78.1.1 the Applicant's employment with Company Y will need to be suspended and may lead to termination, as Company Y needs to protect its own reputation;
     • 78.1.2 it will make it very difficult for the Applicant to attract clients which would make their employment at Company Y untenable;
     • 78.1.3 the Applicant is unlikely to be able to find work in the same field in future "because [their] reputation will have been severely tarnished;" and
     • 78.1.4 "the industry [is] small, and an adviser's reputation is critical: word spreads quickly issues like banning orders when they are made known."
2. Mr HC has been a compliance professional for over 20 years. He explained that the function of the compliance team is to ensure employee compliance with regulatory and other requirements. Mr HC says the Applicant informed Company Y prior to their employment that they had been under investigation by Company X with respect to the discovery of correspondence from the Applicant's ex-business partner and relative on Company X's letterhead containing advice at the time when he no longer represented Company X. Mr HC requested a character reference from Company X who responded via email as follows:

(a) [The Applicant] had been subject to a remediation program at Company X from around 2017 to 2019 due to:

(i) misclassification of personal advices as general advices; and

(ii) a failure to issue requisite statements of advice;

(b) [The Applicant] had successfully completed the remediation program;

(c) [Company X] believed [the Applicant] had been aware of, or party to, an arrangement with [MCF] to continue to provide advice to [the Applicant's] clients after [MCF's] retirement;

(d) [Company X] had expressed their concerns about the alleged conduct involving [MCF] to [the Applicant] and to ASIC; and

(e) [Company X] had allowed [the Applicant] to resign.

1. Despite this information, Company Y considered any risks associated with hiring the Applicant were negligible given the extensive internal compliance controls and because their conduct arose out of MCF's relationship with their former clients (an issue which would not arise at Company Y as he was not an employee there). Mr HC states that in the three years since the Applicant has worked for Company Y there have been no complaints received and no compliance issues identified. The Applicant is supervised, regularly audited, attends to their continuing professional development obligations, and successfully completed their financial advisor exam conducted by the Financial Advisor Standards and Ethics Authority in 2021.

1. ASIC submitted that:
   • 81.1 hardship, alone, is normally not a sufficient basis for securing a stay;[41]
   • 81.2 the Applicant's circumstances are not exceptional and do not warrant a departure from the norm.
   • 81.3 any of the consequences asserted by the Applicant are remediable, particularly in light of the proposed conditional stay which ASIC submits is "sufficient to ameliorate or avoid most or all of the consequences to which the Applicant's Submissions and materials have referred."
   • 81.4 there is a lack of corroborating evidence and particularity of the hardship the Applicant contends they will suffer and refer the Tribunal to the decision of Sahai and Australian Securities and Investments Commission [2021] AATA 590 (Sahai). In Sahai Deputy President McCabe referred to the applicant's lack of substantiating evidence concerning the financial loss and alleged consequences from a failure to grant a stay. In that case Deputy President McCabe was "not persuaded the applicant has established orders are required "for the purpose of securing the effectiveness of the hearing and determination of the application for review."[42]

1. ASIC says it does not accept the purported consequences adverted to by the Applicant.[43]
2. All of the evidence submitted by the Applicant was unchallenged by ASIC in the sense that it did not require any of the witnesses to be available for cross-examination. If a party elects not to cross-examine the other party's expert witness, that witness' evidence is not contradicted and may be accepted by the Tribunal.
3. It is correct that there is no rule of law that requires the Tribunal to accept unchallenged evidence.[44] However, as pointed out by Basten JA in Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234; 261 ALR 382 (at [105]), there should be a reason for a judge/decision maker to not accept unchallenged evidence, such as where the evidence relied upon was inconsistent with other evidence already accept or if the evidence was "inherently incredible".[45] The Applicant's evidence is not "inherently incredible".
4. In Hull v Thompson [2001] NSWCA 359 the New South Wales Court of Appeal said this concerning the appellants failure to cross-examine witnesses:

21. Prima facie if there is no cross-examination of an expert, (and indeed most witnesses**), there is no basis for a Judge not to accept the unchallenged evidence**. I say "prima facie" because there are circumstances in which evidence in a report may be rejected or subject to criticism or doubt. This may occur where, for example, the report is ex facie illogical or inherently inconsistent; or where it is based on an incorrect or incomplete history; or where the assumptions on which it is founded are not established. However, in the absence of some such matters, there is no rational reason to not accept unchallenged evidence.

1. Despite not cross-examining any of the witnesses, ASIC sought to diminish the weight that should be given to the evidence and submitted that the Applicant's evidence of the likely consequences of the failure to grant a stay order was "simply speculation."[46]
2. ASIC conceded that the evidence was "truthful" but that the evidence about financial concerns lacked particularity.[47]
3. The critique of the evidence was not put to any of the witnesses. The Applicant is in the best position to know what the impact will be on their work and personal life. The work concerns are backed up by Mr HC. The Applicant's spouse reiterates the personal and financial detriment their family is likely to face if a stay order is not made. The assumptions of a likely outcome do not seem fanciful or inherently incredible.
4. It is not beyond the realms of reasonable apprehension that personal and financial circumstances are likely to be affected in the event the implementation of the Banning Decision is not stayed. It is not of assistance in the exercise of the discretion to simply say this is the case for everyone and therefore a stay should not be granted. Each case must be considered on its own unique set of facts in line with the principles and purposes of the legislation under review. There may be a lack of corroborating material, but the stay application had to be prepared promptly and was lodged within a matter of days of the Banning Decision being made.[48] The Tribunal sees no reason to doubt the evidence of the Applicant, their spouse or Mr HC. Mr HC is a senior practitioner in the field and his comments regarding the fickle nature of the industry are relevant to the extent of the detriment which may be suffered by the Applicant.
5. It may very well be the case that their career as it currently stands will be significantly ruined. This would be an extremely harsh outcome in a situation where:
   • 90.1 the Banning Decision may be set aside or varied;
   • 90.2 the ban in effect is only for relatively short period; and
   • 90.3 there is no allegation of negligence or harm caused to any members of public.
6. Given the ban only extends to 12 months, the effectiveness of the hearing may not be secured if a stay is not granted. The conditional stay proposed by ASIC requires the Applicant to notify their current client base, and any new clients, of the Banning Decision including that it has been stayed, without any explanation of the conduct from which the public needs to be protected.
7. The conditional stay does not take into consideration any reputation or harm which may be suffered by Company Y or Company X resulting from the Applicant's employment, or continued employment with those firms.

1. The Applicant submits that there is no risk to the public if they were permitted to continue providing financial services in their current role at Company Y pending the final hearing and determination of their appeal.
2. Indeed, ASIC found that:[49]

• 94.1 the contravention by MCF related to only a small number of clients;
• 94.2 those clients were ongoing friends of MCF who were content for, or wanted, MCF to continue providing the services they were providing to them;
• 94.3 no loss has been suffered by these clients;
• 94.4 the risk of harm to these clients was low; and
• 94.5 the contravention was less serious in nature.

1. ASIC acknowledged that, given the delegate found the Applicant poses a low risk of harm to the public, incapacitation is not a particularly relevant factor. However, ASIC contends there is a public interest in maintaining the efficacy of ASIC's regulatory powers by sharing the fact of adverse decisions with the market. ASIC referred to the majority in ASIC v AAT which found that "a market which is not fully informed is not operating properly" (at [54]). ASIC submitted that "this looms large in this case" but offered no explanation for why that is the case. At the hearing Counsel for the Applicant said (with a degree of sarcasm):[50]

There's a fear [by ASIC] that unless the market, the world at large, is told about the fact of the applicant's banning, pending [their] application for review, the integrity of the system itself will be undermined. Again, we're talking about how? How is the integrity of the system going to [be] undermine[d] if the applicant is granted a conditional stay given the unique and idiosyncratic facts of this particular case?

2. The Tribunal agrees with the Applicant on this point.
3. ASIC referred the Tribunal to Downes and Jagot JJ in ASIC v AAT, at [71], in the context of banning decisions made by ASIC pursuant to the Act:

[C]areful consideration ... must be given by the AAT in any exercise of power under s 41(2) of the AAT Act to the balance of competing rights and interests struck by Parliament as embodied in the terms of the Corporations Act, particularly the balance between the rights and interests of the recipient of the banning order and of the public including existing and potential future clients of the recipient of the banning order. As we have said the scheme which the provisions of the Corporations Act embody - with the potential making of a banning order to remain private unless and until ASIC decides to make such an order after having given the recipient an opportunity to be heard - is not mere statutory background or a neutral factor in the process of the formation of the required opinion about what is desirable under s 41(2) of the AAT Act. The scheme which Parliament has established in the Corporations Act, and the public interest in the right of the market to know relevant information as soon as practicable, must be treated as a fundamental element in the decision-making process required under s 41(2) of the AAT Act. (emphasis added)

1. ASIC says that publication is an essential element of general deterrence, and that this role will be thwarted if a stay or non-publication order is made.

1. ASIC plays an important role in society in ensuring that those provided financial services are "fit and "proper" and competent. This protects the unsuspecting community at large. One of the objects of Chapter 7 of the Corporations Act 2001 is to promote fairness, honesty, and professionalism by those who provide financial services (section 760A).
2. The Court in Australian Securities and Investments Commission v Hutchison

[2020] FCA 978 described the object of Chapter 7 of the Corporations Act as follows:

...protection of consumers is central, but the object recognises that such protection and the minimisation of risk is facilitated in a number of ways: by the promotion of fairness, honesty and professionalism by 'those who provide financial services'; by ensuring there is transparency in the market and by reducing systemic risk

1. There is negligible risk to the unsuspecting public of their being exposed to any harm if a stay order is made. A final banning order decision will still have the impact of providing a personal and general deterrence to others.[51] There is no apparent urgency to ensure the deterrent is published now.
2. Whether a stay is granted has no real immediate impact on ASIC.
3. Whereas, there is a possibility that not granting the stay may result in:
   • 103.1 the Applicant losing their clients and facing significant reputational challenges; and
   • 103.2 personal detriment to them and their family (particularly their children).
4. ASIC referred to the decision of McCormack and Australian Securities and Investments Commission [2016] AATA 1021. In that matter the AAT set aside the decision made by the respondent on 10 February 2016 to ban the applicant from providing any financial services for a period of five years and in substitution decided that the banning order should not have been made and the applicant's name should be removed from the register kept by the respondent under s. 922A of the Corporations Act 2001 and the applicant treated as never having been banned. The matter was appealed by ASIC. One of the grounds of appeal was that the AAT misunderstood or failed to have regard to the concept of general deterrence by finding that a banning order would not deter like conduct because of the very remote possibility of the same or similar circumstances arising in the future. On appeal, Australian Securities and Investments Commission v McCormack [2017] FCA 672, the Federal Court set aside the AAT's decision and held that general deterrence is fundamental to the determination of a banning order.[52]
5. There is no dispute that general deterrence is one of the important roles that banning orders play. McCormack was concerned with final orders, not with an interlocutory stay application.
6. The Tribunal is persuaded that the consequence to the Applicant, resulting from not granting a stay, outweighs the public interest to justify the grant of a stay.

Application for review would not be rendered nugatory

1. A date for the substantive hearing has not yet been set, although some preliminary case management directions have been put in place. The length of time prior to the final hearing is a relevant factor in support in the grant of a stay until the application can be heard.
2. ASIC accepts that there is a real possibility the application for review would be rendered nugatory because the Banning Period may end before the matter has been finally determined and there is also a possibility that a lesser period may be imposed.

1. It is not in dispute that the protection of the public is a paramount consideration of the Tribunal in determining whether to exercise its discretionary powers under section 41(2) of the AAT Act.
2. As outlined above, the public risk here is negligible.
3. There are no other "stains" or professional complaints against the Applicant since ASIC's investigation. The Tribunal is not aware of any other previous disciplinary matters.
4. In the circumstances the Tribunal finds the public interest does not outweigh the detriment which the Applicant contends they, together with their spouse and children (innocent parties), will suffer if the stay is not granted.
5. The Tribunal considers that a stay is necessary to secure the effectiveness of the hearing. Relevant material is yet to be filed, the parties are yet to attend some form of ADR conference and then, if the matter is not resolved, will need appropriate time to prepare for a final hearing.[53] The hearing may not occur before early to mid-next year. In this instance the balance of convenience favours the Applicant.
6. ASIC contends that the legislative scheme which enlivens ASIC's power was relevant to the Tribunal's discretion. That is trite to say. Clearly if a person is found not to be "fit and proper" or is found to have been involved in the contravention of a financial services law by another person, ASIC's power is enlivened (ss 920A(1)(d) and 1(g), Corporations Act).
7. The circumstances in which ASIC's power is enlivened, in and of itself, is of no assistance to the Tribunal in determining whether the discretion should be exercised to stay the decision and its publication pending a final hearing. The issue is primarily one of prospects and public interest and hardship. This is akin to the determination of a Court in considering an interim injunction application. Whether an injunction is granted often hinges not so much on prospects (or whether there is a serious question to be tried), but on balance of convenience aspects.
8. The financial and reputational damage that will inevitably result if a stay is not granted, including to third parties, outweighs the need for a "general deterrence" order to be published immediately, particularly in circumstances where there has been no detriment suffered by any of the Applicant's clients, and no cause for concern regarding the Applicant's competency.
9. The impact the decision will have on the children in the circumstances of this case also justifies the making of such an order.[54]
10. The conditional stay proposed by ASIC would render the stay inutile.
11. The Applicant has satisfied the Tribunal that the stay application should be granted.

Power of the Tribunal to make a non-publication order

1. Section 35(1) to (3) of the AAT Act, provides as follows:

(1) Subject to this section, the hearing of a proceeding before the Tribunal must be in public.

(a) direct that a hearing or part of a hearing is to take place in private; and

(b) give directions in relation to the persons who may be present.

(3) The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of:

(a) information tending to reveal the identity of:

(i) a party to or witness in a proceeding before the Tribunal; or

(ii) any person related to or otherwise associated with any party to or witness in a proceeding before the Tribunal; or

(b) information otherwise concerning a person referred to in paragraph (a).

1. The Applicant seeks the following orders pursuant to sections 35(2) and 35(3) of the AAT Act:

Pursuant to ss 35(2) and (3) of the AAT Act, pending the final determination of the Application for Review or further order:

(a) the Applicant continue to be described by the pseudonym 'MRWL';

(b) publication of the name of the Applicant and of any material tending to identify [them] be restricted to the parties, their legal representatives, the Tribunal, its members and officers in the course of their duties and any transcription staff engaged to transcribe the hearing(s) of this matter before the Tribunal;

(c) publication or disclosure of evidence or the contents of documents lodged with or received by the Tribunal be restricted to the parties, their legal representatives, the Tribunal, its members and officers in the course of their duties and any transcription staff engaged to transcribe the hearing(s) of this matter before the Tribunal; and

(d) all hearings shall take place in private.

1. In considering whether to make a confidentiality order under s 35 of the AAT Act, the Tribunal is, pursuant to section 35(5), to take as the basis of its consideration the principle that it is desirable:

(a) that hearings of proceedings before the Tribunal should be held in public; and

(b) that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and

(c) that the contents of documents lodged with the Tribunal should be made available to all the parties.

(d) However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information.

1. The norm is that proceedings are held in public, as reflected in section 35 of the AAT Act.[55] It is important for the open administration of justice that proceedings be held in public and that decisions are published. However, sections 35(2) - (4) establish that there may be occasions when privacy and non-publication orders should be made at the discretion of the Tribunal. What is necessary for such a discretion to be exercised will vary from matter to matter and is entirely dependent on the merits and specific facts of the case. Although each matter is decided on its own facts, other Tribunal and Court decisions may provide guidance and examples of when it has been considered appropriate to exercise the section 35 discretion. A consideration of other Tribunal decisions, although not binding, is an important step to ensuring consistency. Although the Tribunal is not bound by other decisions, it can be guided by them, with a view to ensuring that parties are treated equally and fairly and providing a form of precedence that the public can take notice of. In Drake Brennan J (as President of the AAT) noted (at 643) that consistency with comparable cases and decisions is "[o]ne of the factors to be considered in arriving at the preferable decision".[56]
2. With respect to banning orders under the Corporations Act, the Full Court of the Federal Court of Australia in ASIC v AAT said this in relation to non-publication orders in the context of Corporations Act banning orders (at 148 - 149):

Although s 35 (1) is subject to the balance of the section, it establishes a norm. The norm is that proceedings before the AAT shall be in public. This norm is reinforced by the requirements of s 35 (3) which expressly confirm the principle that it is desirable that hearings be held in public. It follows that when deciding whether it is satisfied that it is desirable to exercise its powers under s 35(2), the AAT is required to form a state of satisfaction which recognises the existence of the norm and the values it is intended to protI.... Suppression orders are rarely made in courts, even though publicity undoubtedly disadvantages the parties. Criminal proceedings are good example. In the AAT itself facts which parties would not wish to be published and which may disadvantage them are frequently published. Social security applications are good example. The reasons these matters are not kept secret is the overriding importance of justice being administered openly and in public. It is not readily apparent why persons in businesses should be treated differently even when, for example, employees may be disadvantaged. > > When measured against the existence of the norm of a public hearing and the scheme established by the Corporations Act with respect to banning orders, it is apparent that the AAT would need some cogent reason by reference to the particular case to depart from the ordinary requirement of a public hearing. It is difficult to accept that harm (even serious harm) to the recipient's reputation resulting from public awareness of the banning order will be a sufficiently cogent reason to justify the grant of a stay in most cases. This is because the risk of harm of this type is inherent in the nature of a banning order.

3. The Tribunal has to exercise its discretion for a stay independently of a non-publication order. The evidence and submissions proffered in support of the stay application are also relevant here.
4. ASIC provided a few case examples where section 35 orders were made.[57] ASIC also noted that it is more common that section 35 orders are not made.
5. A decision which has many similarities to the present is XQZT v Australian Securities and Investments Commission [2009] AATA 669 ("XQZT").[58] In XQZT, ASIC had banned the applicant from providing any financial services for a period of four years. XQZT also applied for an order staying the operation and implementation of the decision (the stay application) and for confidentiality orders. At the stay application the applicant gave evidence that a failure to grant a stay order would:
   • 127.1 cause incalculable and irreparable damage to his reputation and career in the financial services industry;
   • 127.2 result in his losing his business (and he did not expect those clients to return if the ASIC decision is overturned on appeal); and
   • 127.3 have a significant financial impact on him personally in terms of his income and assets (he was the sole income generator for his family, supporting his wife and four children).
6. As here, ASIC was "sceptical of the severity of the effect a banning order might have on XQZT."[59] The Tribunal noted the following:[60]

• 128.1 there was no history of any prior breach of a financial services law;
• 128.2 the applicant's character was of utmost integrity and honesty;
• 128.3 the conduct in question did not give rise to any immediate risk to persons who may deal with him, to the financial services industry or to the public at large; and
• 128.4 given the evidence of damage that would be cause, without a stay the review application would be rendered nugatory.

1. The Tribunal in XQZT accepted the Applicant's evidence and found that it was desirable to grant a stay in circumstances where "there is little or no risk to the financial services industry, or to the public if a stay is granted." [61]
2. The Tribunal found that, given the reasons for the stay (which were also advanced in support of a section 35(2) order), it followed that non-publication and confidentiality orders should be made.[62] Deputy President Handley also found that delaying the publication of the decision would not undermine the deterrent effect of the banning order.[63]
3. Similarly, here, for the reasons already outlined with respect to the stay decision, if non- publication orders were not made, it would probably render the substantive hearing nugatory, and there is a risk of unnecessary harm to the Applicant's family.

1. For the reasons outlined above I have decided to make the following orders pending final determination of the application under review, or until further order of the Tribunal:

1. Pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), the operation or implementation of the reviewable decision dated 5 August 2022 in relation to the Applicant (the Decision) be stayed pending the final hearing and determination of the Applicant's application for review dated 10 August 2022 (the Application for Review), or until further order. 2. Pursuant to s 41(2) of the AAT Act there be a stay of the implementation of the Decision, including restraining the Respondent from issuing any press release or other notification with respect to the Decision and from including any reference to the Decision in any publications, the Gazette, other alerts and/or in any public register maintained pursuant to s 922A(1) of the Corporations Act 2001 (Cth) or otherwise, until the determination of the Application for Review. 3. Pursuant to ss 35(2) and (3) of the AAT Act, pending the final determination of the Application for Review or further order:

(a) the Applicant continue to be described by the pseudonym 'MRWL;'

(b) publication of the name of the Applicant and of any material tending to identify them be restricted to the parties, their legal representatives, the Tribunal, its members and officers in the course of their duties and any transcription staff engaged to transcribe the hearing(s) of this matter before the Tribunal;

(c) publication or disclosure of evidence or the contents of documents lodged with or received by the Tribunal be restricted to the parties, their legal representatives, the Tribunal, its members and officers in the course of their duties and any transcription staff engaged to transcribe the hearing(s) of this matter before the Tribunal; and

(d) all hearings shall take place in private.

Evidence was put on regarding the adverse mental health and relationship impacts that may be suffered by one or more of the Applicant and their family members if the stay (and related orders) were not granted in the form sought by the Applicant (this information having been redacted in the published version of this decision).

I certify that the preceding 132 (one hundred and thirty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member D K Grigg

[1] Exhibit 1, ASIC's Statement of Reasons dated 5 August 2022; Affidavit of the Applicant deposed 10 August

[2] Exhibit 1, ASIC's Statement of Reasons dated 5 August 2022 at [11].

[3] Exhibit 2, banning order dated 5 August 2022.

[4] Exhibit 3, Request for a Stay Order dated 10 August 2022.

[5] Exhibit 1, ASIC's Statement of Reasons dated 5 August 2022 at [7].

[6] Affidavit of the Applicant deposed 10 August 2022, para 12, Ex MRWL-1, pages 284 to 313.

[7] Section 911A(1) provides that a person who carries on a financial services business must hold an AFSL covering the provision of the financial services. Section 761A defines a financial services business as a business of providing financial services. Section 766A(1)(a) provides that a person provides a financial service if, among other things, they provide financial product advice or deal in a financial product. Section 766B(1)(a) provides that financial product advice means a recommendation or a statement of opinion that is intended to influence a person in making a decision in relation to a particular financial product, or an interest in a particular financial product, or could reasonably be regarded as being intended to have such an influence. Section 766C(1) provides that dealing in a financial product means applying for or acquiring a financial product, issuing a financial product or disposing of a financial product (whether engaged in as principal or agent.

[8] Yorke v Lucas [1985] HCA 65; 158 CLR 661, at [17].

[9] Mawhinney v Australian Securities and Investments Commission [2022] FCAFC 159, at [110].

[10] Australian Securities and Investments Commission v Adler [2002] NSWCA 483; 42 ACSR 80, at [80]; Registrar of Aboriginal and Torres Strait Islander Corporations v Matcham (No 2) [2014] FCA 27.

[11] Australian Securities and Investments Commission v Beekink [2007] FCAFC 7, at [80]-[84].

[12] Citing Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129 at [48]- [49] (McHugh J) citing Australian Securities and Investments Commission v Adler [2002] NSWSC 483; 42 ACSR 80 ('ASIC v Adler') at 97-99 (Santow J). See also ASIC v Adler & 4 Ors [2002] NSWSC 483, at [56].

[13] Exhibit 4, Application for Review of Decision dated 10 August 2022.

[14] Exhibit 3, Request for Stay Order dated 10 August 2022.

[15] Exhibit 3, Request for Stay Order dated 10 August 2022.

[16] Exhibit 3, Request for Stay Order dated 10 August 2022.

[18] Re Scott and Australian Securities and Investments Commission [2009] AATA 798, [4] (Downes J).

[19] Re Dart and Director-General of Social Services (1982) 4 ALD 553.

[20] Applicant's Submissions dated 17 August 2022 at [35].

[21] Affidavit of the Applicant deposed 10 August 2022, page 480 (Submissions of 30 May 2022).

[22] Respondent's Submissions dated 25 August 2022, at [30].

[23] Respondent's Submissions dated 25 August 2022, at [33].

[24] The transcript of s 19 examination of the Applicant, conducted on 27 September 2021 (Applicant's s 19 Transcript) attached as exhibit DRP-1 to the Affidavit of the Applicant deposed on 10 August 2022, at [57]- [58].

[25] Respondents' submissions dated 25 August 2022 at [20].

[26] Exhibit 1, ASIC's Statement of Reasons dated 5 August 2022 at [16]-[37].

[27] Exhibit 1, ASIC's Statement of Reasons dated 5 August 2022 at [47].

[28] Exhibit 1, ASIC's Statement of Reasons dated 5 August 2022 at [58]-[59].

[29] Exhibit 1, ASIC's Statement of Reasons dated 5 August 2022 at [98]-[101].

[30] Nathanson v Minister for Home Affairs [2022] HCA 26, at [32].

[31] Levi v Companies Auditors and Liquidators Disciplinary Board [2013] FCA 719, at [32].

[32] Nathanson v Minister for Home Affairs & Anor [2022] HCA 26, at [33].

[33] Affidavit of the Applicant deposed 10 August 2022 and 29 August 2022.

[35] Affidavit of the Applicant deposed 29 August 2022 at [14].

[36] Affidavit of the Applicant deposed 29 August 2022 at [14].

[37] Affidavit of the Applicant's spouse deposed 10 August 2022.

[38] Affidavit of the Applicant's spouse deposed 10 August 2022.

[39] Affidavit of Mr HC deposed 10 August 2022, Exhibit BPG-1.

[40] Affidavit of Mr HC deposed 10 August 2022, at [8]-[10].

[41] McLean and Australian Securities and Investments Commission [2016] AATA 22, at [21]-[22]; See also Van Dieren and Australian Securities and Investments Commission [2019] AATA 4777, at [40].

[43] Respondent's Submissions dated 25 August 2022 at [35].

[44] Zong v Lin [2022] NSWCA 136, at [53].

[45] Citing Sullman v Sullman [2002] NSWSC 169; [2002] DFC 95-248 (77,468) at [304]-[306]; Caldwell v J A

Neilson Investments Pty Ltd [2007] NSWCA 3; (2007) 69 NSWLR 120 at 135 [96]; Ellis v Wallsend District

Hospital (1989) 17 NSWLR 553 at 586-8.

[48] XTWK and Australian Securities And Investments Commission [2007] AATA 1890; (2007) 98 ALD 131, at [35].

[49] Exhibit 1, ASIC's Statement of Reasons dated 5 August 2022, at [90].

[51] XTWK and Australian Securities and Investments Commission [2008] AATA 703; (2008) 105 ALD 596 at [74].

[52] Australian Securities and Investments Commission v McCormack [2017] FCA 672, at [47]-[48].

[53] Re Dart and Director-General of Social Services (1982) 4 ALD 553, at 556.

[54] Minister for Immigration and Multicultural and Indigenous Affairs v X [2005] FCAFC 217, at [20].

[55] Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185, at [74].

[56] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 643.

[57] LZ15 and Australian Securities and Investments Commission (2016) 152 ALD 594; PQHL and Australian Securities and Investments Commission [2015] AATA 1032; Opus Capital Limited and Australian Securities and Investments Commission [2010] AATA 694; 117 ALD 608

[58] ASIC's appeal to the Full Federal Court was dismissed: Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185.

[59] [2009] AATA 669, at [27].

[60] [2009] AATA 669, at [28], [30].

[61] [2009] AATA 669, at [31].

[62] [2009] AATA 669, at [44].

[63] [2009] AATA 669, at [43].