Donald and Australian Securities Investments Commission

[2000] AATA 1094

DECISION AND REASONS FOR DECISION [2000] AATA 1094

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2000/1256

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      ANDREW WILLIAM DONALD    
  Applicant
           And    AUSTRALIAN SECURITIES INVESTMENTS COMMMISSION       
  Respondent

DECISION

Tribunal       JUSTICE O'CONNOR, PRESIDENT      

Date22 November 2000

PlaceMelbourne

Decision      That a stay order be granted with immediate effect and that the matter proceed to hearing expeditiously.        

..............................................
  Justice O'Connor, President

REASONS FOR DECISION ON STAY APPLICATION
(EX TEMPORE)

22 November 2000   JUSTICE O'CONNOR, PRESIDENT    

1. I propose to grant a stay in this matter.

2. I have heard from Mr Moshinsky of counsel for the applicant and from Mr Williams for the respondent.

3. The applicant, Mr Donald, was called to give evidence.  That evidence was directed to the economic circumstances in which he is currently living dependent upon, it seems from the documents that were tendered and his oral evidence on a small income of three to four hundred dollars a week working as a bookmaker's clerk and the largesse of his family, namely his father and brother, to maintain his family, which is comprised of three small children and a wife who is not in employment.

4. He has some difficulties in managing those financial affairs.  He gave evidence that as a result of the report of his success on appeal from a decision of Deputy President McDonald of this Tribunal a number of job offers were made to him, one of which has materialised and he wishes to accept a position and work in this job, which I think has been described as a marketing position, for the period until the issue is finally determined by the Tribunal in the person of another deputy presidential member.

5. Mr Moshinsky put in submission that as well as the question of hardship there was, because of remarks made by Justice Heerey in the judicial review proceedings, a strong prospect that in relation to the matter under s 829(d) of the Corporations Law, there would be a reduction of the period of banning that had been imposed on his client and that unless this ban, which is now of course of four years' duration, is lifted, he will have his rights of review circumscribed and made ineffective because, as it is uncommonly understood, he has already been banned for a period of at least 16 months and the two years that was imposed by Deputy President McDonald will expire by July next year.

6. It was also put by Mr Moshinsky that if his submission is wrong about that and, of course, if there is a worse case scenario and the period of the ban is extended, it can from the time of the further decision be reimposed and served out by his client and he puts that there is no detrimental outcome to the public interest by that prospect being foreseen.

7. Mr Williams says that the prospects of success, that is the reduction of the ban, are quite slight and that his client will be relying on the grounds under (f) and (g) of s 829, which were not dealt with by the Deputy President and that the prospects of reduction of the period of the ban are consequently quite slight.

8. He has not challenged the hardship ground but argues that the public interest demands that the ban continue.  I am not convinced that is right when he freely acknowledges that the ban can be reimposed if it is seen as necessary by the person who ultimately hears this case and that the public interest will be protected by the submissions of ASIC and the conduct of the review in an appropriate way.

9. The major reason why I am granting the stay, in fact, the primary reason why I am granting the stay is to make sure that Mr Donald has the benefit of his rights of administrative review and I am concerned in the public interest to make sure that if a stay is granted that it is not one of an open-ended, long duration and so, as a condition of the stay, I am prepared to make an order which is, I think, agreed to by both parties, that the matter should be expedited.

10. There are some difficulties associated with that but as the President of the Tribunal, I will direct that it be expedited and make whatever arrangements are necessary to have that done.  The stay order should operate immediately and so Mr
    Donald is now free until the ultimate determination of the matter to work in this industry or to put it the other way, he is no longer banned.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of JUSTICE O'CONNOR, PRESIDENT

Signed:         .....................................................................................
  Associate

Date/s of Hearing  22 November 2000
Date of Decision  22 November 2000
Counsel for the Applicant        Mr N Moshinsky
Solicitor for the Applicant         R Murley
Counsel for the Respondent    D Williams