And Australian Securities and Investments Commission

INTERLOCUTORY DECISION (STAY AND SECTION 35 ORDERS)

Decision The Tribunal makes the following orders and directions:

1. Pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal stays the operation and implementation of the decision under review, including entry of the decision in any register maintained by the respondent, publication of the decision in the Gazette, and disclosure of the decision in any media releases issued by the respondent; and
2. Pursuant to s 35(2) of the Administrative Appeals Tribunal Act 1975 (Cth), pending the ultimate determination of the substantive application or any further order of the Tribunal, that:

1. XQZT be described by a pseudonym for the purpose of protecting his identity; and 2. the hearing shall take place in private and that only the parties and their representatives and witnesses, the Tribunal and its staff may be present; and

1. the publication or disclosure of evidence or the contents of documents lodged with or received in evidence by the Tribunal is restricted to the parties and their representatives and witnesses, the Tribunal and its staff and the staff of Auscript.

.....................[sgd].......................

PRACTICE AND PROCEDURE - Banning order under s 920A of the Corporations Act - power to stay or otherwise affect the operation or implementation of a decision under review - 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 - confidentiality orders sought - hearings to be in public except in exceptional circumstances - whether it is desirable to make an order by reason of the confidential nature of any evidence or matter or for any other reason - whether desirable to restrict the publication of any material tending to identify the applicant -- whether restriction extends to gazettal notice and press releases

Administrative Appeals Tribunal Act 1975 (Cth): ss 35, 41

Corporations Act 2001 (Cth): ss 920A, 1041B

Duncan v Companies Auditors Liquidators Disciplinary Board & Ors (2006) 155 FCR 572; (2006) 61 ACSR 47; (2006) 93 ALD 401; (2006) 44 AAR 253; (2006) 24 ACLC 1621; [2006] FCA 1747

Re PTLZ and ASIC (2008) 100 ALD 648; (2008) 47 AAR 247; [2008] AATA 106

ASIC v PTLZ [2008] FCAFC 164; (2008) 48 AAR 559

Re Cape York Airlines Pty Ltd and Civil Aviation Authority (2004) 80 ALD 364; (2004) 40 AAR 14; [2004] AATA 682

Re Quinlivan and ASIC (2008) 106 ALD 438; [2008] AATA 1094

Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64

Re VBW and Australian Prudential Regulation Authority; sub nom An Applicant and Australian Prudential Regulation Authority (AAR) (2005) 89 ALD 643; (2005) 42 AAR 206; [2005] AATA 1294

Re Graeber and Australian Prudential Regulation Authority (2007) 46 AAR 115; [2007] AATA 1966

Re YFFM and ASIC [2009] AATA 409

Re TNST and ASIC [2009] AATA 602

1. XQZT has applied to the Tribunal for the review of a decision of the Australian Securities and Investments Commission (ASIC) made under the Corporations Act 2001 (Cth) (the Act) to make an order prohibiting him 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. This decision and the reasons that follow concern the stay application and the application for confidentiality orders.

1. The background to this matter is set out in the written reasons for the decision dated 31 July 2009 provided by ASIC to XQZT and in a statement provided by XQZT to ASIC dated 22 June 2009. In early 2008, XQZT was the managing director of an investments and financial services company (the Company). Its operations included securities broking, equity capital markets, and corporate advisory and wealth management. As part of its broking operations, the Company conducted a securities lending business, with clients lending securities to the Company in exchange for cash loans. The Company obtained finance for the cash loans from a number of corporate lenders by on-lending securities lent to the Company to those corporate lenders. XQZT states that in early 2008, the Company commenced winding down its securities lending business. About two months later, it became known that one of the Company's corporate lenders was in financial difficulties, and that administrators might have been appointed. XQZT was concerned about the effect this might have on the Company's business, and about whether it would be able to reclaim its clients' securities that had been on-lent to the corporate lender to obtain financing.
2. XQZT sought advice on what action he should take to secure the return of the securities on-lent by the Company to the corporate lender which was in financial difficulties. It was suggested to XQZT that the Company could consider selling the on-lent securities held by the corporate lender and reporting the sales as special crossing trades. Special crossing trades are "off-market" transactions, where a purchaser agrees to purchase securities from a seller at an agreed price which may bear no relation to the market price of those securities.
3. The effect of such special crossing trades would be that the Company would create a market obligation to deliver the securities to the purchaser at the settlement date, that is, three days after the special crossing transaction was entered into (referred to as T+3). The creation of the market obligation would serve as a notice/instruction to the corporate lender to return the on-lent securities to the Company so that the Company could comply with its obligation to deliver the securities to the purchaser. The corporate lender would benefit by the Company repaying to the corporate lender the loan that had been secured by the on-lent securities.
4. XQZT said he telephoned the Australian Stock Exchange (ASX) compliance division to explain that the Company proposed to execute a series of special crossings to facilitate the return by the corporate lender of the on-lent securities. He said neither of the two ASX staff with whom he spoke expressed concern about the proposed course of action or suggested that the Company should not proceed with this course. Of the ASX staff with whom XQZT spoke, the ASX market supervision compliance manager's version of events was to the effect that the ASX could not comment on or endorse the proposed special crossings and that XQZT needed to discuss the matter with the receiver of the corporate lender.
5. XQZT gave instructions to his staff to proceed with 12 special crossings, which were effected shortly afterwards. The purported seller of the securities, the subject of the special crossings, was the Company, acting for itself, and the purported buyer of the securities was an associated company. The 12 special crossings were reported by the Company to the ASX later that morning.
6. Three days later, XQZT advised the ASX that the 12 special crossings would be cancelled the next day. The Company had in the meanwhile obtained finance from a corporate lender to purchase the on-lent securities and so used this funding to purchase part of the securities from two other corporate lenders.
7. ASIC was concerned that by placing the buy and sell instructions for the 12 special crossings, XQZT may not have complied with s 1041B(1) of the Act in so far as his actions had the effect of causing or creating a false or misleading appearance. ASIC therefore gave XQZT notice of a hearing to investigate the matter and gave XQZT an opportunity to appear at that hearing and make submissions. The hearing was conducted on 14 June 2009. On 31 July 2009, a delegate of ASIC decided to impose a banning order on XQZT, banning him from providing any financial services for a period of four years.
8. In the statement of reasons for his decision, the delegate found XQZT's placing of the buy and sell instructions for the 12 special crossings was an act that was likely to have the effect of causing the creation of a false or misleading appearance on the ASX of active trading in the securities the subject of the 12 special crossings. The delegate also found that XQZT's actions had or were likely to have the effect of causing the creation of a false or misleading appearance on the ASX with respect to the market and price for trading in each of the securities the subject of the 12 special crossings. Further, that XQZT's actions had or were likely to have the effect of causing the creation of a false or misleading appearance on the ASX of active trading in the securities the subject of the 12 special crossings.
9. The delegate said he was satisfied that XQZT had failed to comply with s 1041B(1) of the Act and had therefore failed to comply with a financial services law for the purposes of s 920A(1)(e) of the Act. These findings enlivened ASIC's power to make a banning order against XQZT, the purpose of which was not to punish XQZT but to protect the public.
10. Having made these findings, the delegate then considered whether he should exercise ASIC's discretion to make a banning order. While generally accepting XQZT's submissions that the circumstances of the conduct were exceptional and that XQZT's actions were motivated by a desire to protect the Company's clients' interests and that he did not intend to manipulate the market or seek to benefit from the 12 special crossings, the delegate found the difficulty was not with what XQZT was trying to achieve but with the method that he chose to achieve it. The delegate found that the 12 special crossings were a contrivance entered into for the primary purpose of stimulating a response that might have resulted in the recall of the on-lent securities, and that XQZT must have known that there was no certainty that the Company would be in a position to settle the 12 special crossings as required at T+3. The delegate found XQZT's willingness to proceed with the special crossings in these circumstances demonstrated recklessness as to whether the Company would be in a position to settle on them at T+3, or at all. The delegate found that XQZT was motivated not only by the interests of the Company's clients but also by the Company's interests and therefore his own interests. At that time, XQZT was the majority shareholder, holding 87.5 percent of the Company's shares.
11. The delegate found, in all the circumstances, that XQZT's failure to comply with s 1041B of the Act was a serious one. While noting the positive character references tendered on XQZT's behalf and the damage to XQZT's reputation which might follow if a banning order were to be made, the delegate concluded that the seriousness of XQZT's conduct, the strong public interest in maintaining financial markets that are free from manipulation, and the importance of deterrence, both specific but more particularly general deterrence, made it appropriate that an unconditional banning order be made. In considering an appropriate period for the banning order, the delegate had regard to the "unusual and somewhat unique circumstances" that prompted the 12 special crossings and decided that a banning order at the lower end of the range was appropriate. He therefore decided that XQZT should be banned from providing any financial services for a period of four years.

1. In these interlocutory proceedings, the Applicant seeks orders:
   • (a) under s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) staying the operation and implementation of the decision; and
   • (b) under s 35(2) of the AAT Act to protect the identity of XQZT.
2. Section 41(2) of the AAT Act states:

...

Operation and implementation of a decision that is subject to review

(1) ...

(2) The Tribunal may, on request being made, as prescribed, 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) Subject to this section, the hearing of a proceeding before the Tribunal shall be in public.

(2) Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:

• (a) direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; and

(aa) give directions prohibiting or restricting the publication of the names and addresses of witnesses appearing before the Tribunal; and

(b) give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; and

(c) give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding.

(3) In considering:

• (a) whether the hearing of a proceeding should be held in private; or
• (b) whether publication, or disclosure to some or all of the parties, of evidence given before the Tribunal, or of a matter contained in a document lodged with the Tribunal or received in evidence by the Tribunal, should be prohibited or restricted;

the Tribunal shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted.

1. Thus, the first issue for the Tribunal, pursuant to s 41(2) of the AAT Act, is whether in the Tribunal's opinion, after taking into account the interests of any persons who may be affected by the review, it is desirable to "make such order or orders staying or otherwise affecting the operation or implementation of the decision" to ban XQZT from providing any financial services for a period of four years "for the purpose of securing the effectiveness of the hearing and determination of the application for review".
2. The second issue for the Tribunal is whether, bearing in mind the Tribunal's obligation to take as the basis of its consideration the desirability of its hearings being held in public and that evidence given before the Tribunal and the contents of documents lodged with or received in evidence by the Tribunal should be available to the public and to all parties, it is desirable to make a confidentiality order under s 35(2) of the AAT Act.

1. XQZT seeks an order that:
   • (a) stays the operation and implementation of the decision;
   • (b) stays ASIC's publication of the decision in the Gazette, a requirement imposed by s 920E(2) of the Act;
   • (c) stays ASIC's entry of the decision on the register maintained by it under s 922A of the Act; and
   • (d) stays any public disclosure by ASIC of its decision, including but not limited to media releases.
2. In their submissions, the parties have addressed four factors considered relevant to the Tribunal's consideration of whether a stay should be granted. These are:
   • (a) the prospects of success or merits of XQZT's case on a review;
   • (b) any prejudice to the parties or any other person if a stay is not granted;
   • (c) the public interest; and
   • (d) whether the review application, if successful, would be rendered nugatory or pointless if a stay is not granted.
3. I agree that those four factors are relevant considerations and will, therefore, address each in turn, with reference where relevant to the parties' submissions.
4. Prospects of success: The Applicant contends there is a strong likelihood that his application to the Tribunal will be successful. Mr Finch pointed to what he claimed to be a number of errors in the delegate's decision, in particular that the delegate overlooked the fact that special crossings are not on-market transactions but, rather, are the outcome of a private treaty. Moreover, the special crossings did not require the transferor to have title to the securities until three days after the transaction took place.
5. Mr Finch said XQZT will contend that he did not breach s 1041B(1) of the Act since the trading was not "on a financial market" and, in any event, did not give rise to a false or misleading appearance. Mr Finch also noted that XQZT consulted with the ASX before placing the 12 special crossings.
6. The Respondent contends that no apparent error has been identified by XQZT and this is therefore a neutral factor.
7. Prejudice to the parties or others: XQZT provided a written statement to the Tribunal dated 4 August 2009 referring to the damage he fears will be caused to his reputation if a stay is not granted. He also gave oral evidence about this at the hearing. XQZT fears that if the decision becomes known, it will cause incalculable and irreparable damage to his reputation and therefore to his career in the financial services industry, and that it would severely impact on the business of the Company, and, in turn, on the livelihood of its 240 employees. On his institutional investor clients becoming aware of the banning order, XQZT is likely to lose their business, and he does not expect those clients to return if the ASIC decision is ultimately overturned. XQZT estimated that the Company could potentially lose 65-70 percent of its revenue over the next few months because, even though he is no longer involved in the management of the Company, he is its primary income generator. As a result of such loss of business, the Company would be likely to lose many of its employees, most of whom have been with the Company for some years and whom he recruited.
8. XQZT rejected the suggestions put to him by Mr Lloyd that his reputation had already been damaged following disciplinary action taken against the Company by the ASX. While XQZT accepted that some past actions of the Company warranted criticism, he said the Company had pulled through the financial crisis, had not lost any clients, and continues to trade successfully. He also rejected press criticism of the Company's actions, evident from press cuttings provided by the Respondent, and any implicit association of him with such criticism as a result of his investment in the Company and his role as its former managing director.
9. XQZT contended that a banning order will have also a significant financial impact on him personally in terms of his income and assets which have been severely depleted as a result of the recent global financial crisis. He is the sole income generator for his family, supporting his wife and four children.
10. The Respondent was sceptical of the severity of the effect a banning order might have on XQZT and the Company, and contended that the order would not cause XQZT or the Company the degree of harm XQZT claims, especially because some information is already publicly known, and XQZT has been associated with press criticism of the Company. With regard to any prejudice to the Respondent by reason of the granting of the stay, the Applicant submitted there was no such prejudice and noted that the Respondent has not referred to any.
11. The public interest: There is no dispute that there is a public interest in ensuring confidence in the securities market. The Applicant contended there is no reason to believe that XQZT will not comply with the financial services law in the future and this is confirmed in the delegate's decision. The circumstances in which the 12 special crossings took place were exceptional, there is no evidence of any deleterious effect on the public, and there is no suggestion that XQZT attempted to manipulate the market. Mr Finch said XQZT has no history of any prior breach of a financial services law, his character is of utmost integrity and honesty, and his conduct does 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.
12. The Respondent argued that the delayed operation of a banning order would defer the protection afforded by the Act to the public. Rather than issuing a stay, the appropriate course was to proceed to an early hearing.
13. Whether the review application would be rendered nugatory: The Applicant referred to XQZT's evidence of the damage that will be caused to him and the Company if a stay is not granted, and contended that without a stay, the review application will be rendered nugatory: any "fruits of victory" will be rendered sterile.
14. Having considered the parties' submissions in relation to the above factors and XQZT's evidence, and having taken into account the interests of those persons who may be affected by the review, I am satisfied that it is desirable to order a stay. In my view, it is likely that XQZT's reputation will be irreparably damaged if the banning order becomes known publicly, and that there could be significant damage to the Company's business, including consequent damage to the livelihood and careers of its employees. I also accept XQZT's evidence that he would personally suffer significant financial damage if a stay is not granted. I am satisfied that on XQZT's past history, there is little or no risk to the financial services industry, or to the public if a stay is granted. I note that at [139] of his decision, the delegate stated:

1. Having regard to the above AAT decisions and the fact that the 12SC were in effect a single transaction and the unusual circumstances under which they occurred, I am not satisfied that there is reason to believe that [XQZT] will not comply with a financial services law for the purposes of section 920A(1)(e) of the Act.

Thus, on balance, I am satisfied that it is desirable to order a stay.

1. The question then arises as to what form the stay should take. Section 41(2) of the AAT Act empowers the Tribunal to "make such order or orders staying or otherwise affecting the operation or implementation of the decision as the Tribunal considers appropriate". In Duncan v Companies Auditors Liquidators Disciplinary Board & Ors (2006) 155 FCR 572; (2006) 61 ACSR 47; (2006) 93 ALD 401; (2006) 44 AAR 253; (2006) 24 ACLC 1621; [2006] FCA 1747 at [9], Emmett J recognised that the power to stay is to stay the operation or implementation of the decision and not to suspend or stay the decision itself. He noted the ordinary meaning of "operation" being the way in which a thing works, or the act, use or manner of operating. By contrast, "implementation" involves the execution or putting into effect of, in this instance, a decision.
2. I also note that the words of s 41(2) allow for the making of orders staying or "otherwise affecting" the operation or implementation of the decision.
3. The parties referred me to the decision of Deputy President Forgie in Re PTLZ and ASIC (2008) 100 ALD 648; (2008) 47 AAR 247; [2008] AATA 106 (Re PTLZ). This decision was upheld on appeal to the Full Federal Court in ASIC v PTLZ [2008] FCAFC 164; (2008) 48 AAR 559 (ASIC v PTLZ), although there was no discussion in the Court of the extent of the orders and directions authorised by s 41. In Re PTLZ, DP Forgie, after an extensive analysis of the law, concluded that the giving of a notice under a requirement such as s 920E to "publish a notice in the Gazette as soon as practicable after making, varying or cancelling a banning order", is part of the implementation of a decision. I agree. The requirement to publish "as soon as practicable" accommodates a staying of that requirement under s 41(2) of the AAT Act.
4. Another relevant issue here is 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. Again, this was a matter considered in Re PTLZ by DP 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. Of relevance are the words "otherwise affecting the operation or implementation of the decision" in s 41(2). If a press release is part of the action taken by ASIC in the course of implementing its decision and which affects its implementation, then, in my view, as DP Forgie found, the s 41(2) power can extend to include such action.
5. The parties also referred me to the contrary decisions in Re Cape York Airlines Pty Ltd and Civil Aviation Authority (2004) 80 ALD 364; (2004) 40 AAR 14; [2004] AATA 682, and Re Quinlivan and ASIC (2008) 106 ALD 438; [2008] AATA 1094, where the Tribunal held that the issue of a press release was not a part of or a step in the implementation of a decision. In my view, while such steps are not prescribed by the legislation, such action is, nevertheless, part of what one would associate with a government agency taking steps to publicise a decision, and forms part of the implementation process. In terms of s 41(2) of the AAT Act, extending an order to include such action is, essentially, staying actions that otherwise affect the implementation of the decision.
6. Thus, in relation to the stay orders sought by the Applicant, I am satisfied that the Tribunal has power to make the orders sought, and having taken into account the effect of not granting a stay on persons who may be affected by the review, it is my opinion that it is desirable to make such orders.
7. The Tribunal therefore stays the decision under review, and the gazettal of or the issue of any press release about that decision pending the ultimate determination by the Tribunal of the Applicant's review application or any further order of the Tribunal.

1. The second issue for me to decide is whether to make the s 35(2) confidentiality orders sought by the Applicant. The Applicant seeks orders to protect the confidentiality of XQZT's name for the purposes of the application and the proceedings, including an order that the hearing should be held in private. As the Full Federal Court said in ASIC v PTLZ at [34] (per North and Downes JJ), the starting point in any consideration of an application for orders under s 35(2) of the AAT Act is the basic principle that "the hearing of a proceeding, before the Tribunal shall be in public" (s 35(1)). It is only "[w]here the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason" that the Tribunal may make an order under s 35(2).
2. In considering whether to make a confidentiality order, the Tribunal must not only take as the basis of its consideration the desirability of Tribunal hearings being in public and of evidence and documents lodged being made available to the public, but must also consider the reasons for the application being made (s 35(3)).
3. The reasons advanced by the Applicant supporting the s 35(2) application are essentially the same reasons as those in respect of the application for stay orders: that unless orders are made to protect XQZT's identity, there is a serious risk that the hearing of his review application will be of no utility because of the damage that will be done once the mere fact of the hearing becomes publicly known.
4. In this case, displacing the basic principle that a hearing before the Tribunal shall be in public requires "a real possibility of doing injustice to, or inflicting a serious disadvantage upon" the Applicant: Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64 (per Brennan J); see also the discussion in Re VBW and Australian Prudential Regulation Authority; sub nom An Applicant and Australian Prudential Regulation Authority (AAR) (2005) 89 ALD 643; (2005) 42 AAR 206; [2005] AATA 1294 (Re VBW).
5. The Respondent contends there is a strong public interest in this matter and that publication of information about the decision and proceedings will have a deterrent effect. While I accept that there may be a public interest in this matter - evident from the large number of press clippings about the Company's affairs provided by the Respondent, I do not accept that delaying publication in order to, in this case, secure the effectiveness of the hearing and the determination of the application for review will undermine the deterrent effect of a banning order if the Respondent's decision is affirmed.
6. In my view, the damage that would be caused to XQZT's reputation, and, potentially to the Company's business, thereby undermining the outcome of the review if the application for review is successful justifies the making of certain confidentiality orders under s 35(2).
7. The next issue is what form those confidentiality orders should take. The Respondent contends that the Applicant's name cannot be protected by an order under s 35(2). In Re Graeber and Australian Prudential Regulation Authority (2007) 46 AAR 115; [2007] AATA 1966, Deputy President Walker concluded that the proper construction of s 35(2)(b) did not permit the making of a confidentiality order extending to include the names of the parties. This conclusion contradicts that in cases such as Re VBW. DP Walker does, however, refer to its not having been shown in that case that the suppression of names or the use of pseudonyms was necessary to secure the effectiveness of the hearing (at [32]).
8. Section 35(2)(a) permits the Tribunal to make an order directing that a hearing or part of a hearing shall take place in private and the names of the persons who may be present. Section 35(2)(aa) permits the Tribunal to give directions prohibiting or restricting the publication of the names and addresses of witnesses. Section 35(2)(b) permits the Tribunal to give directions prohibiting or restricting the publication of evidence or of matters contained in documents lodged with or received in evidence by the Tribunal. Section 35(2)(c) permits the Tribunal to give directions prohibiting or restricting the disclosure of evidence or of the contents of documents.
9. The Applicant seeks orders:
   • (a) that the hearing be conducted in private;
   • (b) that XQZT be described by a pseudonym for the purposes of these proceedings; and
   • (c) restricting the publication of any material tending to identify XQZT, of any documents lodged with the Tribunal or any evidence given before the Tribunal, and of any orders, directions, decisions or reasons of the Tribunal.
10. The first order appears to fall within the Tribunal's power under s 35(2)(a). The second order may fall under s 35(2)(b), being related to matters contained in documents lodged with the Tribunal. The third order appears to fall under s 35(2)(b) as to publication and under s 35(2)(c) as to disclosure.
11. The Applicant drew to the Tribunal's attention two recent Tribunal decisions. In Re YFFM and ASIC [2009] AATA 409, the Tribunal noted that a non-publication order is usually an important adjunct to the grant of a stay. Senior Member Penglis noted that the anonymisation of the Applicant's identity permitted the Tribunal's decisions to be made available to the public without defeating orders made by the Tribunal to protect the identity of the Applicant pending the ultimate determination of the substantive application. In Re TNST and ASIC [2009] AATA 602 (Re TNST), Deputy President McDonald made orders for the hearing to be in public, but for the Applicant's name to be anonymised for the purpose of the application, for the publication of his name and any identifying material to be restricted, and for the publication and disclosure of evidence and matters contained in documents lodged with the Tribunal to be restricted until further order of the Tribunal.
12. It appears from the facts of Re TNST that the applicant in that case was in rather a different situation from XQZT in the present case, and that, unlike in that case, the potential adverse effects in the present case extend beyond purely XQZT himself to the business of the Company and its employees.
13. I have therefore decided to make the following orders under s 35(2) pending the ultimate determination of the substantive application or any further order of the Tribunal:
    • (a) an order that XQZT be described by a pseudonym for the purpose of protecting his identity;
    • (b) an order that the hearing shall take place in private and that only the parties and their representatives and witnesses, the Tribunal and its staff may be present; and
    • (c) an order restricting the publication or disclosure of evidence or the contents of documents lodged with or received in evidence by the Tribunal to the parties and their representatives and witnesses, the Tribunal and its staff and the staff of Auscript.

I certify that the 51 preceding paragraphs are a true copy of the reasons for the interlocutory stay and s 35 decision herein of Mr R P Handley, Deputy President

Signed: .................[sgd].............................................................

Dates of Interlocutory Hearing: 20 and 21 August 2009

Solicitor for the Applicant: Mr L Hastings, Freehills

Counsel for the Respondent: Messrs S Lloyd SC and D Gilbertson