Batros and Australian Securities and Investments Commission

The Administrative Appeals Tribunal (AAT) considered an application by Mr. Batros for a stay of a decision by the Australian Securities and Investments Commission (ASIC) that prohibited him from providing any financial services. Mr. Batros sought to stay this banning order pending the determination of his substantive application for review of ASIC's decision.

The Tribunal was required to determine whether to exercise its discretion to grant a stay of the banning order. This involved considering the prospects of success of Mr. Batros's substantive application, the financial hardship he claimed to be suffering, and the public interest. The Tribunal noted that the lodging of an application for review does not automatically operate as a stay.

In its reasoning, the Tribunal found that the material before it did not establish that a stay was warranted. It observed that the conduct under review, which appeared to involve the execution of trades while possessing non-public information despite being put on notice by Morgans, suggested deliberate action. The Tribunal also found that the claimed financial hardship was unsubstantiated by any financial data, making it impossible to conclude that a stay was essential for Mr. Batros's wellbeing. Crucially, the Tribunal weighed these factors against the strong public interest in prohibiting insider trading and protecting the public from the misuse of confidential information for private gain, noting the heavy onus on an applicant to demonstrate that their interests outweigh those of the public.

Consequently, the Tribunal concluded that Mr. Batros had not discharged the onus of proving that a stay was warranted and that it was unable to form the opinion that granting a stay would be desirable, taking into account the interests of any person who might be affected by the review. Accordingly, the Tribunal refused the application for a stay of the banning order. The Tribunal also declined to make an order for confidentiality regarding the proceedings, finding no basis for such an order in the public interest, and directed the parties to confer on scheduling an early hearing for the substantive review.