Golman and Australian Securities and Investments Commission

The Australian Securities and Investments Commission (ASIC) issued a disqualification order against Mr Serge Golman under section 206F of the Corporations Act 2001 (Cth). Mr Golman sought review of this decision by the Tribunal, raising a preliminary question as to whether ASIC had the power to make the disqualification order. This question arose because a different ASIC delegate had previously considered disqualifying Mr Golman in 2018, based on his involvement in companies that were wound up due to insolvency, but had ultimately decided not to disqualify him. The 2020 disqualification process was based on Mr Golman's involvement in three of the same companies.

The central legal issue before the Tribunal was whether ASIC was prevented from re-exercising its power under section 206F to disqualify Mr Golman, given that a previous delegate had already conducted a process under the same section concerning substantially the same trigger events and had decided not to disqualify him. Mr Golman argued that ASIC was seeking a "second bite at the cherry" and lacked the power to commence a new decision-making process. The Tribunal was required to determine the interpretation of section 206F and its interaction with section 33 of the Acts Interpretation Act 1901 (Cth).

The Tribunal reasoned that the combined effect of section 206F of the Corporations Act and section 33 of the Acts Interpretation Act permitted the 2020 delegate to make the reviewable decision notwithstanding the earlier decision-making process. Section 33 of the Acts Interpretation Act provides that where a power is conferred to do an act, the power may be exercised from time to time as occasion requires. The Tribunal found that the power to disqualify under section 206F could be re-exercised, and that the previous decision not to disqualify did not exhaust ASIC's power in relation to the same or similar circumstances. The Tribunal was satisfied that the 2020 delegate had the power to make the decision under review.