Dortkamp and Australian Securities and Investments Commission

[2022] AATA 2286

Dortkamp and Australian Securities and Investments Commission [2022] AATA 2286 (18 July 2022)

Division:TAXATION AND COMMERCIAL DIVISION

File Number(s):      2022/4741

Re:Paul Dortkamp

APPLICANT

AndAustralian Securities and Investments Commission

RESPONDENT

DECISION

Tribunal:Deputy President Rayment OAM QC

Date:18 July 2022

Place:Sydney

The application for a stay of the operation of the banning order is granted with the conditions set out in these reasons.

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Deputy President Rayment OAM QC

CATCHWORDS

PRACTICE AND PROCEDURE – STAY – application for stay of decision under section 41(2) of the Administrative Appeals Tribunal Act 1975 – where decision is banning order – prospects of success – financial consequences for the Applicant of a refusal of stay – public interest – expedition of application arranged – stay granted with conditions

LEGISLATION

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

REASONS FOR DECISILON

Deputy President Rayment OAM QC

18 July 2022

1. The applicant, Mr Dortkamp, seeks review of a banning order made against him by the respondent on 2 June 2022 under sections 920A(1) and 920B(2) of the Corporations Act 2001 (Cth).

2. The applicant has sought a stay of the banning order and I heard from the parties in relation to the stay on 12 July 2022.

3. I have made directions designed to ensure that the proceedings will be heard with expedition in October 2022.

4. The respondent opposes a stay. In my opinion, having regard to the extensive experience of the applicant and to references filed on his behalf, the applicant enjoys sufficient prospects of success in the application for review to justify the consideration of a stay on appropriate conditions in the three months between now and the likely hearing and determination of the review.

5. The banning order will occasion financial disadvantage to the applicant.  The expedition of the proceedings should reduce that damage.

6. The expedition of the proceedings and the conditions to be fixed by the Tribunal should, in the circumstances of the case, reduce any damage to the public interest flowing from the grant of a stay.  To the conditions proposed by the applicant I have added an additional condition for a monthly report to be made by the applicant to the respondent as to work done by the applicant for those entities for which the applicant does work during the period of the stay, in case any occasion should arise for application to be made for a termination of the stay.

7. The conditions on which the Tribunal orders a stay are as follows:

   (a)Mr Dortkamp will not perform any work, in any capacity, for Spaceship Capital Ltd (SCL) or any of its related bodies corporate;

   (b)Mr Dortkamp will not have any involvement in the business of SCL or any of its related bodies corporate;

   (c)Mr Dortkamp may only perform functions as an officer of a financial services business to the extent necessary or convenient to fulfil his role as a member or chair of:

   (i)the compliance committee of Investors Mutual Limited (Investors Mutual);

   (ii)the compliance committee of Morningstar Investment Management Australia Limited (Morningstar);

   (iii)the compliance committee of Perennial Investment Management Limited (Perennial);

   (iv)the asset allocation and investment committee of Implemented Portfolios Pty Ltd (Implemented Portfolios);

   (d)Mr Dortkamp may only perform functions as an officer of a financial services business to the extent necessary or convenient to fulfil his role as a member or chair of the committees referred to in condition (c) if:

   (i)each committee has at least two members in addition to Mr Dortkamp;

   (ii)each committee has at least one member in addition to Mr Dortkamp who is independent of, or external to, the relevant entity;

   (iii)in respect of the committees on which Mr Dortkamp is chair, that:

   (a)Mr Dortkamp not be permitted to exercise a casting vote (if any) at all; and

   (b)a member other than Mr Dortkamp be responsible for preparing the agenda and meeting “packs” for committee meetings.

   (e)Mr Dortkamp not be permitted, in any circumstances, to perform the function as a responsible manager of any financial services business (including as a key person).

   (f)Mr Dortkamp is to report to the respondent at the last business day of the months of July, August and September 2022 as to work done by him under condition (c), indicating what decisions were taken by those committees, indicating how he voted on any decisions taken, and whether there was any lack of unanimity among the committee about those decisions.

I certify that the preceding 7 (seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Rayment OAM QC

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Associate

Dated: 18 July 2022

Date of hearing:	12 July 2022
Date final submissions received:	15 July 2022
Counsel for the Applicant:	Mr M Sherman
Solicitors for the Applicant:	Mr A Eastwood, Herbert Smith Freehills
Counsel for the Respondent:	Mr A Hoel
Solicitors for the Respondent:	Mr R Chiarella, Australian Securities and Investments Commission