McLean and Australian Securities and Investments Commission

This matter came before T. Tavoularis SM of the Administrative Appeals Tribunal concerning an application by the applicant, Mr. McLean, for a stay of a banning order made by the Australian Securities and Investments Commission (ASIC). The dispute centred on Mr. McLean's challenge to the validity and implementation of the ASIC banning order, particularly in relation to his representation during the ASIC proceedings and the financial hardship the order would impose.

The primary legal issues before the Tribunal were whether it was desirable or appropriate to grant a stay of the ASIC decision under review, and the prospects of success of Mr. McLean's substantive application to set aside the banning order. The Tribunal was required to assess whether the applicant had demonstrated a genuine possibility of success in his appeal, considering the arguments and evidence presented.

The Tribunal considered the applicant's contention that his representation by an individual without a valid legal practising certificate rendered the ASIC decision invalid. However, the Tribunal found that s 920A(2) of the *Corporations Act 2001* (Cth) did not mandate legal representation by a qualified legal practitioner, and that ASIC's natural justice obligations could be discharged even with non-legal representation. Furthermore, the Tribunal found that the applicant had not demonstrated actual prejudice resulting from his representation. The Tribunal also examined a spreadsheet and an affidavit tendered by the applicant, concluding that they did not convincingly articulate arguments for the substantive application, but rather appeared to be commentary on the ASIC decision and a dispute over legal fees. The Tribunal agreed with ASIC's submission that the substantive application had only minimal prospects of success.

Consequently, the Tribunal refused to grant the stay of the operation or implementation of the ASIC decision under review.