Luff and Australian Securities & Investments Commission

The applicants, Build Your Wealth Pty Ltd (BYW) and Mr Luff, sought interlocutory orders from the Administrative Appeals Tribunal for a stay of decisions made by a delegate of the Australian Securities and Investments Commission (ASIC) and for non-publication orders. The ASIC delegate had decided to cancel BYW's Australian Financial Services Licence and disqualify Mr Luff, a responsible manager and controlling shareholder of BYW, from providing financial services. An interim stay had been in place for BYW while these applications were considered.

The Tribunal was required to determine whether to grant a stay of ASIC's decisions to cancel BYW's licence and disqualify Mr Luff, and whether to make orders preventing the publication of these decisions. The applicants also sought orders for a private hearing. The core of the dispute involved balancing the applicants' desire to continue operating and maintain confidentiality against ASIC's regulatory objectives, including protection of the public and transparency of its actions.

Deputy President Bernard J McCabe reasoned that while BYW was making progress in addressing ASIC's concerns, including implementing process changes and seeking to appoint a new responsible manager, the seriousness of the breaches identified by ASIC, which pointed to systemic, personnel, and leadership failures, and the ongoing role of Mr Luff, weighed against granting a stay. The Tribunal also refused to make non-publication orders, citing the logistical difficulties and potential prejudice to ASIC's functions, and affirming the principle of open justice as the default position under section 35(5) of the Administrative Appeals Tribunal Act 1975.

Consequently, the Tribunal ordered that the interim stay in favour of BYW be dissolved, and ASIC be released from its undertaking not to publish the decisions, both effective from 4pm on 24 July 2024. The applications for non-publication orders were refused.