McDermott and Australian Securities and Investments Commission

McDermott sought judicial review of a decision by the Australian Securities and Investments Commission (ASIC) to refuse an application for an Australian Financial Services Licence (AFSL). The dispute centred on ASIC's belief that McDermott was likely to contravene the obligations imposed by section 912A of the *Corporations Act 2001* (Cth).

The primary legal issue before the Court was whether ASIC had a sufficient basis to form the belief that McDermott was likely to contravene the obligations under section 912A. This involved determining the meaning of "likely" in this context and considering whether a Statement of Agreed Facts, which detailed past contraventions, could be relied upon by ASIC to refuse the AFSL. The onus of proof in establishing that there was no reason to believe a contravention was likely rested with McDermott.

Deputy President Forgie P affirmed ASIC's decision, finding that the Statement of Agreed Facts provided a sound basis for ASIC to believe that McDermott was likely to contravene section 912A. The Court reasoned that the past contraventions, as admitted in the Statement, demonstrated a pattern of conduct that supported the likelihood of future contraventions. The Court did not accept McDermott's submissions that the agreed facts did not establish a likelihood of future contravention, nor that ASIC had failed to properly consider the evidence.