Burnell and Australian Securities & Investments Commission

[2018] AATA 977

Burnell and Australian Securities & Investments Commission [2018] AATA 977 (23 March 2018)

Division:TAXATION & COMMERCIAL DIVISION

File Number(s):2017/7574      

Re:Tracey Burnell  

APPLICANT

Australian Securities & Investments CommissionAnd  

RESPONDENT

DECISION

Tribunal:F D O’Loughlin, Deputy President

Date:23 March 2018

Date of reason:       20 April 2018

Place:Melbourne

The Tribunal has, in accordance section 41(2) of the Administrative Appeals Tribunal Act1975 refused the stay application.

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Deputy President

PRACTICE AND PROCEDURE – financial services industry - Application for stay of ASIC banning order – Applicant contends financial hardship due to banning order – whether stay required to secure effectiveness of substantive hearing – stay refused

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) s 41(2)
Corporations Act 2001 (Cth)

Cases

Civil Aviation Safety Authority v Hotop 145 FCR 232
Australian Securities and Investments Commission v PTLZ [2008] FCAFC 164
Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185

REASONS FOR DECISION

F D O’Loughlin, Deputy President

20 April 2018

1. The Respondent ASIC has made a banning order, banning the Applicant from providing financial services within the meaning of the Corporations Act 2001 (Cth). The grounds for making the order were that the Applicant had not complied with a financial services law, had been involved in the contravention of a financial services law by another person and is not of good fame or character.

2. The Applicant has sought review of the banning order.  As presently framed, the basis of the application is that the order was did not have regard to all of the facts that had been provided.

3. The Applicant has sought a stay of the order.  For the purposes of the stay application, material has been provided to the Tribunal by the Applicant, which either predates the period of conduct which underlies the ASIC delegate’s decision to make the banning order or is information of a kind that the ASIC delegate has considered in making her order.

4. The banning order on its face shows that the delegate has considered an extensive range of material provided to her, considered evidence provided in a hearing and materials provided after the hearing had been concluded.  Accordingly, on the grounds presently advanced the prospects of success for the Applicant on the substantive review of her application are weak.  If the application turns into one in which the Applicant disputes the interpretation of events and conclusions reached by the delegate, then her prospects of success are unknown, as all of the relevant evidence has not yet been led.

5. For the purposes of the stay application the Applicant has given evidence of financial difficulties.  That evidence has not been contested, however no evidence has been led of attempts to secure employment in alternative fields of endeavor.  The Applicant contends that in spite of an earlier banning order and a conviction, she has been able to secure further remunerative roles in the financial services sector and this reflects, or shows, that the current banning order causes her financial hardship.  It is open to doubt whether those roles were secured on the basis of full disclosure of the earlier banning order and conviction.

6. The Tribunal can stay the effect of a banning order by exercise of powers conferred under s 41(2) of the Administrative Appeals Tribunal Act1975 (Cth). Section 41(2) provides:

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

7. In Civil Aviation Safety Authority v Hotop 145 FCR 232, Siopis J said at 40:

   The powers conferred on the Tribunal by s 41(2) of the AAT Act are to be exercised for the purpose of securing the effective hearing and determination of the review application.

8. In Australian Securities and Investments Commission v PTLZ [2008] FCAFC 164, the court observed that in determining what is desirable, the Tribunal is to take into account the interests of any persons that may be affected.

9. In Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185 the Full Court observed that the persons who may be affected include not only the recipient and the recipient’s family, but also the person’s existing and potential clients as well as the public at large.

10. The scheme of banning orders is fundamentally protective.  The interests of the community are the focus of the scheme.  The interests of the subject of a banning order are always adversely affected, that is a given.  The primary consideration of the stay is to secure effectiveness of the final determination of the substantive application.  The present application concerns a life ban.  The utility of the substantive application in a life ban situation will always be conserved even if a stay is not allowed.

11. A stay is not needed to preserve the utility of the ongoing application in these circumstances.  Financial hardship caused by a banning order on its own is rarely if ever determinative on a question of whether a stay can be granted.  The financial stressors and the like caused by a banning order, which are subject to an application for review, can be dealt with or at least alleviated by having an application at an early time.

12. The Tribunal is in a position to hear the applicant’s case as soon as she is ready to have it heard.  

13. In light of the foregoing a stay in the present matter is denied.

    DECISION

14. The Tribunal refuses the application for a stay.

15.     I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President F D O'Loughlin

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

Associate

Dated 20 April 2018

Date of stay hearing	23 March 2018
Applicant:	In person
Counsel for the Respondent	Ms R Sharp
Solicitors for the Respondent	Australian Securities & Investments Commission, Administrative Law, Chief Legal Office