Kender and Australian Securities and Investments Commission

This matter concerned an application by Mr Kender for a stay of a decision made by the Australian Securities and Investments Commission (ASIC) which prohibited him from managing corporations for a period of three years. Mr Kender sought the stay pending the hearing and determination of his application for review of ASIC's decision by the Administrative Appeals Tribunal (AAT).

The primary legal issue before the AAT was whether it had the power to grant a stay of ASIC's decision under section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) and, if so, whether the circumstances warranted the exercise of that power. The court was required to consider the purpose of the power to grant a stay, which is to secure the effectiveness of the hearing and determination of the application for review, and to assess the prospects of success of the application, the consequences of refusing a stay for the applicant, the public interest, and the consequences for ASIC in carrying out its functions.

Deputy President Bernard J McCabe P reasoned that the power to grant a stay was not available simply because the applicant might experience hardship, but rather must be exercised for the requisite purpose of securing the effectiveness of the review. The court noted that while ASIC's decision appeared to have been made some time after the events it concerned, this delay did not invalidate the decision but was a factor to consider in the urgency of its implementation. The court also acknowledged its role in promoting sound public administration and the efficacy of the regulatory regime under the Corporations Act.

The application for a stay was granted by the AAT, subject to Mr Kender providing undertakings in a form that had been agreed upon by the parties.