Olive Financial Markets Pty Ltd and Australian Securities and Investments Commission - [2020] AATA 982

Olive Financial Markets Pty Ltd and Australian Securities and Investments Commission [2020] AATA 982 (23 April 2020)
Division:TAXATION AND COMMERCIAL DIVISION
File Number(s): 2020/1564
Re:Olive Financial Markets Pty Ltd
APPLICANT

AndAustralian Securities and Investments Commission
RESPONDENT

DECISION
Tribunal:Member R Reitano
Date:23 April 2020
Place:Sydney

The Tribunal makes the following orders:
1.Subject to Olive Financial Markets Pty Ltd (Olive) complying with each of the conditions set out in paragraphs 2. to 6. the operation of the Australian Securities and Investments Commission’s (ASIC) decision of 13 March 2020 to cancel Olive’s Licence under s.915C of the Corporations Act 2001 (Cth) (the Act) (the decision) is stayed pending the hearing and determination of the review;

2.Despite paragraph 1. the decision is not stayed for the purposes of ss.922A and 915F(2) of the Act and r.9.1.02(m) of the Corporations Regulation 2001 (Cth) subject to a notation in the ASIC Gazette and ASIC Register that the cancellation of Olive’s Licence has been stayed by the Administrative Appeals Tribunal pending the hearing and determination of Olive’s application for review under s.1317A of the Act;
3.By no later than 5.00pm on 24 April 2020 Olive is to give written notice to any person who it, its directors, employees, authorised persons or anyone else on its behalf provides or has provided financial services to since 1 January 2020 in the following terms:
On 16 March 2020 a delegate of ASIC made a decision to cancel Olive Financial Markets Pty Ltd’s (Olive) Australian financial services licence because the delegate was not satisfied that Olive had complied with various of its obligations under s.912A of the Corporations Act 2001 (Cth) and because the delegate considered that Olive was likely to contravene those obligations in the future.
On 17 March 2020 Olive made an application to the Administrative Appeals Tribunal (AAT) for a review of the delegate’s decision under s.1317A of the Corporations Act 2001 (Cth). The AAT has made an order staying the delegate’s decision pending the hearing and determination of the review. The effect of this is that Olive is able to continue providing financial services until the review is determined. The AAT directed Olive to inform you of these matters as a condition of the stay of the delegate’s decision.

4.By no later than 5.00pm on 28 April 2020 Olive is to serve upon ASIC an affidavit of a person having knowledge of the facts stated in it providing evidence as to who notification was given under paragraph 3. and how such notification was given.
5.Despite paragraph 1. the decision is not stayed for the purpose of Olive, its directors, employees, authorised persons or anyone else on its behalf conducting business with any person who was not a person in receipt of the notice referred to in paragraph 3. above. To avoid doubt, the purpose of this clause is to restrict Olive to conducting business with only those persons who were its clients on and after 1 January 2020 and before 17 March 2020 until the hearing and determination of the review.
6.Olive will furnish to ASIC on or before the last day of each month from the date of this order copies of all:
(i)reports of communications and advice given between advisers of Olive Services and those clients;
(ii)monthly audits of the complaints register;
(iii)minutes of fortnightly meetings with employees of Olive Services which are conducted for the purpose of monitoring operations at the CAR level and ensuring that potential compliance risks can be addressed in a timely manner;
(iv)minutes of monthly meetings between the executive team of Olive and compliance managers at Olive Services dealing with policies and measures that can be taken to ensure compliance with regulatory requirements and training of staff;
(v)any report or audits whether generated externally or internally concerning Olive’s compliance with regulatory requirements for that month.

7.The application for orders under s.35 is dismissed.
8.The parties may apply on 24 hours’ notice in writing should there be any matter that needs to be dealt with arising from these orders.

.......................[SGD].................................................
Member R Reitano
CATCHWORDS
PRACTICE AND PROCEDURE – STAY APPLICATION – CONFIDENTIALITY APPLICATION – application for stay of decision to cancel the applicant’s financial services licence – risk to the public – significance of COVID 19 to stay considerations – applicant’s prospects of success neutral consideration – consideration of interests of third parties – stay granted with conditions – publication of decision to cancel licence necessary to protect the public – confidentiality application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 35, 41, 43
Corporations Act 2001 (Cth) ss 912A, 915C, 961B, 1317A
CASES
Anthony Scott and Australian Securities and Investments Commission [2009] AATA 798
Australian Securities and Investments Commission v Administrative Appeals Tribunal and Another [2009] FCAFC 185

Australian Securities and Investments Commission v PTLZ [2008] FCAFA 164
Axicorp and Australian Securities and Investments Commission [2020] AATA 92
Kender and Australian Securities and Investments Commission [2018] AATA 4445
SECONDARY MATERIALS
Corporations Regulation 2001 (Cth) r 9.1
REASONS FOR DECISION
Member R Reitano
23 April 2020

Olive Financial Markets Pty Ltd (Olive) has held an Australian financial services licence (Licence) continuously since 18 July 2011.[1] On 13 March 2020 a delegate of the Australian Securities and Investments Commission (ASIC) made a decision to cancel the Licence under s.915C of the Corporations Act 2001 (Cth) (Act). This meant that Olive was no longer able to carry on its financial services business in Australia from that day except in the case of some limited matters concerned with winding down its business that it was allowed to carry on for another three months from then.
[1] Affidavit, Justin Jerome Richmond, 17 March 2020 at [5].
On 17 March 2020 Olive filed an Application for Review of Decision (Application) seeking a review of the decision under s.1317A of the Act as well as a Request for Stay Order (Stay Application) seeking to have the operation and implementation of the decision stayed until its Application was heard and determined.
The Application, which will be heard later this year or perhaps even next year, seeks to have the decision reviewed because Olive says the decision is wrong. Whether the delegate was wrong is immaterial to its review by the Tribunal: the Tribunal will be concerned with arriving at the correct or preferable decision based on the material before it.
The Stay Application, with which this decision is concerned, requests the Tribunal make ‘orders under ss.41(2) and (5) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) staying’ the decision and its ‘operation, publication and disclosure’.[2] The Stay Application also asks the Tribunal to make orders under s.35 of the AAT Act to ensure Olive’s identity remains confidential until the proceedings are determined.
[2] Applicant’s submissions, 20 March 2020 at [7].
I have decided to make an order under s.41(2) staying the decision with some conditions attached to that order, and to refuse the application for the order under s.35. These are my reasons for those decisions.
Background
Olive’s financial services business comprises two parts: a managed discretionary account (MDA) business and a superannuation business. The MDA business involves Olive managing financial products on behalf of its clients. The superannuation business involves making recommendations, giving advice and managing superannuation products. Olive has about 3,500 superannuation clients.[3] The nature of Olive’s business necessarily means it is subject to the licencing requirement, including the requirement to hold a licence, under the Act. That is why Olive holds the Licence and needs to continue to hold the Licence to carry on its business.
[3] Affidavit, Justin Jerome Richmond, 17 March 2020 at [15].
Mr Justin Richmond (Mr Richmond) has been a director of Olive since November 2019 and its chief executive officer at all relevant times. Mr Richmond made two affidavits which contained most of the evidence Olive relied on in support of the Stay Application. I will refer to that evidence where necessary.
ASIC commenced an investigation into Olive’s conduct sometime in September 2017.[4] A hearing before the delegate was convened two years later in late October 2019. I do not know why the investigation took two years or why the matter took two years to come before the delegate, but it does seem a long time especially given Olive continued to trade during that time without, so it would seem, any of the concerns raised in this application creating any imperative for action to be taken more quickly. In any event, I know nothing about why so much time elapsed so I will not deal with that aspect of the matter any further. The hearing before the delegate proceeded over two days.
[4] Affidavit, Justin Jerome Richmond, 17 March 2020 at [10].
On 13 March 2020, the delegate decided Olive had not complied with its obligations under s.912A of the Act and, under s.915C of the Act, it was likely that Olive would contravene its obligations under s.912A of the Act. The delegate found Olive failed to comply with various aspects of its obligations under ss.912A(a), (c), (ca), (d), (f) and (g) of the Act. The decision was reduced to writing and a copy of it was provided to me.
It is not necessary to set out the detail of the obligations which Olive was found not to have complied with or the delegate’s findings. In general, Olive was found to have been delinquent in complying with what are described as ‘general obligations’ under the Act. These were its obligations to: do ‘all things necessary to ensure that the financial services covered by the licence are provided efficiently, honestly and fairly’;[5] to ‘comply with financial services laws’;[6] to ‘take reasonable steps to ensure that its representatives comply with the financial services laws,’ (such as the obligation to act in the best interests of its clients in giving advice);[7] to ‘have available adequate resources to provide the financial services … and to carry out supervisory arrangements’;[8] to ‘ensure that its representatives are adequately trained … and are competent, to provide those financial services’;[9] and to have a compliant dispute resolution procedure.[10]
[5] Section 912A(1)(a) of the Act.
[6] Section 912A(1)(c) of the Act.
[7] Sections 912A(1)(ca) and 961B of the Act.
[8] Section 912A(1)(d) of the Act.
[9] Section 912A(1)(f) of the Act.
[10] Section 912A(1)(g) of the Act.
I have referred to these obligations in order to illustrate that the findings of the delegate were about failings of some significance. The delegate found many of the failings by Olive occurred over a period of many years. The failings were found to exist in both the MDA business and the superannuation business.
I have already referred earlier to the consequence of the delegate’s decision which, in the absence of a stay order, would see the Licence cancelled and its business closed immediately save for some ‘tidying up’ tasks which were required to be completed by 12 June 2020.
It is only necessary to add to the background that at about the time of the decision, and certainly by 22 March 2020, Australia was in the grip of the COVID 19 pandemic that affected local, national and international financial markets in a way not seen since the global financial crisis of 2008. This saw a fall in the ASX 200 of something like 20 to 30% since its peak in February 2000.[11] The COVID 19 pandemic has created an uncertain social and economic environment the likes of which have not been seen in this generation. It has seen an unprecedented level of government intervention and spending in the economy to forestall its effects. The resultant social dislocation and economic consequences are yet to be fully seen, but on any account, they are likely to be dire, far reaching and in place for the foreseeable future. They are likely to affect every aspect of the Australian community. .
[11] Affidavit, Justin Jerome Richmond, 17 March 2020 at [35]; Affidavit, Justin Jerome Richmond, 20 March 2020 at [19].
Issues
The two issues are whether an order should be made staying in whole or in part the decision under s.41 of the AAT Act and whether an order effectively keeping Olive’s identity confidential under s.35 should be made. I will deal with each issue separately.
Section 41(2)
There is no issue concerning the power of the Tribunal to make an order staying the operation or implementation of the decision.
Section 41(2) of the AAT Act provides:
The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding ), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review
There are two other aspects to s.41(2) which will become relevant so I should identify them here. First, the power to make an order under s.41(2) includes the power to make an order with conditions. Second, without reciting its terms, s.41(3) permits the Tribunal, on request being made by a party, to vary or revoke an order made under s.41(2).
The exercise of the discretion under s.41(2) involves two inquiries: the first concerns the desirability of making an order staying the operation or implementation of the decision or part of it; and the second, whether the stay order has the purpose of securing the effectiveness of the hearing and determination of the matter. Although it is convenient to consider them separately it is obvious that aspects relating to each, relate to the other.
‘…the interests of any persons who may be affected by the review…’
In considering the desirability of making an order, s.41(2) directs the Tribunal to consider the interests of persons who may be affected by the review. Here the interests to consider are those of Olive, its staff, its clients, future or potential clients and more generally the public at large. It is necessary to consider those interests from both the purview of a stay being granted and one not being granted. In that way the relevant interests can be determined and measured.
ASIC conceded ‘that a refusal to grant a stay would have significant consequences for the Applicant and its staff’.[12] The evidence about the precise effect on Olive’s business is a little speculative, suggesting as it does that two of its main third party suppliers on which it relies in operating trading platforms for its superannuation business might exercise rights of termination of their agreements absent a stay;[13] that another supplier that services part of its MDA business could exercise a right of termination;[14] and that its arrangement for card payments with two other third parties might come to end.[15] If these things happen it is said they will ‘have an adverse effect on the ability of Olive to continue to operate its business in the event that Olive is successful in its application for review’.[16] Although it is not spelt out in the evidence it probably goes without saying that at least between the day of cancellation and the date of any final decision by the Tribunal in the review, should Olive be successful, Olive would not be able to conduct its business. I accept, even though it is difficult to identify the reach of any effect on Olive, that it is more likely than not that the consequences for Olive of not granting a stay would be significant in the short and longer terms. In blunt terms if a stay is granted and Olive succeeds on review none of the adverse consequences whether long term or short term arise.
[12] ASIC’s submissions, 23 March 2020 at [50].
[13] Affidavit, Justin Jerome Richmond, 17 March 2020 at [30].
[14] Ibid.
[15] Affidavit, Justin Jerome Richmond, 17 March 2020 at [31].
[16] Affidavit, Justin Jerome Richmond, 17 March 2020 at [33].
The likelihood that many of its employees will have their employment terminated if no stay is granted follows from the likely adverse effects on Olive’s business. It is not necessary to identify precisely how many, although I accept the evidence that it will be something like two-thirds of its workforce or about 15 people, employees will have their employment terminated.[17] The effects on those employees who lose their jobs may be greater in some cases than in others – the three trainees it employs[18] and the overseas sponsored advisor[19] might be more significantly affected than others, but again identifying the precise effect and who exactly will be affected is probably to enter the realm of speculation more than anything else. The fact that people will lose their jobs, especially during the time until the matter is determined, is very likely and real.
[17] Affidavit, Justin Jerome Richmond, 17 March 2020 at [42].
[18] Affidavit, Justin Jerome Richmond, 17 March 2020 at [43].
[19] Affidavit, Justin Jerome Richmond, 17 March 2020 at [44].
There is a second aspect to this, which I have already referred, concerning the COVID 19 pandemic. The interests of these people who are, in the absence of a stay, likely to have their employment terminated are more likely than not more significant than they might otherwise be. Termination of employment in the current social and economic environment is likely to be more challenging now than it might otherwise have been in more usual circumstances. The suggestion that employees who lose their employment because a stay is not granted will not obtain employment in the next six months has more than a ring of plausibility about it in that context.[20] There is the prospect that the consequences for those employees might be more serious and more long term than that.
[20] Affidavit, Justin Jerome Richmond, 17 March 2020 at [42].
Also, sight should not be lost of the fact that should Olive succeed in its application for review the consequences for any dismissed employee in the intervening period will not be able to be changed. It is possible that some or all of them might be re-engaged after the hearing and determination of the matter, but there are very many factors that would affect that likelihood, not the least of which is Olive’s capacity to restart its business quickly. In the intervening period those employees would be left to do their best in the search for employment in a difficult and changing labour market.
The third class of people who may be affected by the review are Olive’s clients. The evidence put these into two classes: its MDA business clients and its superannuation business clients. As I have said, there are about 3,500 clients in Olive’s superannuation business. The suggestion by Olive, that it is its clients that might be disadvantaged in the absence of a stay, is a little self-serving. The claim needs to be carefully scrutinized. In the present circumstances the fact that the COVID 19 pandemic has led to volatility in financial markets redolent of the global financial crisis of 2008[21] cannot be gainsaid. The kind of measures the Commonwealth Government has announced are unprecedented.[22] The effects will be pronounced in respect of clients who will be left to find alternative financial advice and assistance about superannuation matters in the immediate future. This is particularly so as superannuation matters are concerned both in terms of advice and investments. Absent a stay the superannuation clients would be without access to a financial adviser and would need to find an alternate financial advisor. In ordinary circumstances that might be not so significant as it is now. I have no reason to doubt the evidence that in the present circumstances there has been a marked increase in the need to provide advice about matters related to superannuation and especially matters related to hardship. It is likely that having to find an alternative source of superannuation advice now will simply add to the hardship of those who need such advice most.
[21] Affidavit, Justin Jerome Richmond, 17 March 2020 at [35].
[22] Exhibit 1, Media Release dated 22 March 2020.

If a stay is not granted Olive’s MDA clients would not be able to transfer their open positions on Olive’s platform and, if forced to close those positions, it is said they are likely to suffer losses. There is no evidence about the extent of any losses across the MDA business or specifically so far as it relates to individual clients. The declines in the market over the last month and the likely continuing decline paints a grim picture for investors. The evidence is that being forced to close positions at the present time is likely to force these clients to suffer losses. Beyond that level of generality there is not much other evidence about how precisely the MDA clients will be affected.
The effect on potential clients of a stay would be that they would be able to secure Olive’s services at a time when its status as a business providing financial services was itself under review. The absence of a stay would mean that they would not be able to utilize Olive’s services. If a stay were granted and the delegate’s decision was ultimately affirmed it is, however, possible that they will be detrimentally affected by the granting of the stay because of their involvement with a business providing financial services that failed to abide by the strictures of s.912A that were designed to protect, amongst others, those potential clients. That possibility weighs heavily in terms of the purpose of a stay to which I will turn later.
The public interest needs to be considered. The regulatory regime itself is designed to protect the public from financial advisers who are found not to comply with regulatory guidelines or requirements which have as their very object the protection of the public.[23] The tension in this case, perhaps like in most cases involving regulatory decisions that come to the Tribunal for review, is between allowing the regulator to fulfil its function on the one hand and balancing the interests at stake on the other whilst keeping steadfastly in mind that the review is designed to have efficacy. The regulatory scheme enshrined in the Act is designed to protect the public. By cancelling the Licence, the public is protected against the consequences of a financial services provider’s lack of compliance with the standards of proper behaviour that are laid down in the Act. The public is entitled to be protected against the kinds of bad practices that the delegate has found.[24] But it is to be remembered that the delegate’s decision is the very subject of the review and it should not be presumed to be correct. This is particularly so when the prospects of success in the review are a neutral consideration.
[23] Anthony Scott and Australian Securities and Investments Commission [2009] AATA 798, [10].
[24] Kender and Australian Securities and Investments Commission [2018] AATA 4445, [15].
An important matter that bears upon the public interest is the changes Olive says it has implemented in the time leading up to the delegate’s decision. There was a deal of evidence about various changes that have been implemented since September 2017. At least some of these, if not all of them, were subject to the delegate’s consideration. ASIC suggested these recent changes to ‘aspects of [Olive’s] business [is] not such to sufficiently ameliorate the public risk.’[25] ASIC did not appear to contest the fact that Olive had taken these steps.
[25] ASIC’s submissions, 23 March 2020 [36].
The changes said to have been made were set out in detail in the evidence: in respect of the MDA business these appear to be significant and have addressed, at least on the face of things, some of the delegate’s concerns.[26] In respect of the superannuation business the most significant changes appear to relate to the replacement of its CAR’s,[27] changes to its ‘key’ personnel[28] and amendments to its complaints register.[29] Most of the changes have been implemented in the last 12 months. ASIC says this is understandable because of the ‘strong incentive to make changes to meet ASIC’s concerns.’[30] Be that as it may those changes, whatever their motivation, probably offer some amelioration of the potential risk to the public of allowing Olive to continue its business pending the hearing and determination of the review.
[26] Affidavit, Justin Jerome Richmond, 17 March 2020 at [10].
[27] Affidavit, Justin Jerome Richmond, 17 March 2020 at [14] – [15].
[28] Affidavit, Justin Jerome Richmond, 17 March 2020 at [21] – [26].
[29] Affidavit, Justin Jerome Richmond, 17 March 2020 at [27].
[30] ASIC’s submissions, 23 March 2020 at [49].
ASIC says that Mr Richmond’s continued role in the business and his lack of ‘appropriate insight into the long history of misconduct’ and his refusal ‘to accept any responsibility for it’ presents particular dangers to the public, both actual clients and potential clients.[31] That is a consideration, but it of course requires me to accept the findings of the delegate at this stage of the review where those findings are, at least in part, matters that will be addressed in the review. In any event, in the view I take the changes that have been made, and some of the conditions that I intend to impose on the order I will make, sufficiently mitigate against the risk to the public.
[31] Affidavit, Justin Jerome Richmond, 17 March 2020 at [49].
The other aspect of the public interest that needs to be considered concerns adding to the level of social dislocation in the current circumstances. I have already referred to this aspect of the matter in dealing with the interests of client and employees. It is not necessary to say anything further.
Other factors relevant to the desirability of a stay
In determining the question of whether it is desirable to make an order staying a decision it is also necessary to consider the remainder of the matters identified by Downs J in Scott.[32] I have already dealt with issues concerning the consequences to Olive, its employees, its clients (future and present) and the public.
[32] Anthony Scott and Australian Securities and Investments Commission [2009] AATA 798.
ASIC fairly conceded that the prospects of success were a neutral consideration in determining this application. This, it was submitted, was because even if the Tribunal upon a final hearing were to find the various failings on Olive’s part to be made out there was still discretionary considerations as to what relief would be granted. But there is another aspect to this. Having regard to the length and depth of the delegate’s reasons it is not at all possible to say anything more than that Olive has arguable prospects of success. I have no doubt that the contraventions are serious, but it is not for the Tribunal in a case like this one, to at this stage conduct some sort of preliminary or mini trial in order to weigh and consider the evidence and evaluate what the chances might be that Olive will be successful. I do not know what evidence will be relied upon by either party on the hearing of the review.
I consider that the best that can be said having regard to what is presently before the Tribunal is that there is a legitimate contest involving questions of fact and law and about the ‘relief’ that will be granted even if ASIC is correct about the various contraventions it asserts. Olive has an arguable case. I do not consider the matter can be put any more highly than that. ASIC is correct to describe the prospects of success as a neutral consideration although I think the reasons why that might be so are a little more compelling than those to which ASIC’s submissions were directed.
Olive made no submission that the review would be rendered nugatory should an order staying the decision not be made. It did, as I have observed, suggest that there would be significant, even irreversible, detriment to its business. I have not found it necessary to decide or consider that issue further, accepting as I have that it is enough that that the detriment to its business is likely to be significant in the absence of a stay.
‘…the effectiveness of the hearing and determination of the application…'
The power in s.41(2) is in a scheme for merits review of administrative decisions under many varied enactments authorising the making of those decisions. The possibilities about the kinds of decisions the Tribunal might make on review involve an array of outcomes ranging from affirming decisions to setting them aside or making some other or entirely different decision to that made originally.[33] It would in very many cases defeat, if not diminish, in no small part the efficacy of merits review to allow a decision which has serious consequences, or indeed any consequences, for those directly and indirectly affected by allowing the decision to take its course while the hearing and determination of the matter proceeded in a fashion that was entirely oblivious to those consequences. Equally, there are cases where allowing the original decision to stand whilst the review proceeds will have no or little consequence at all for anyone. This is not the latter kind of case.
[33] See s.43 of the AAT Act.
If this review were heard and determined immediately, say the day after the delegate made his decision, and if the decision on review involved setting aside the cancellation of the Licence, the process of review would be a perfectly efficient one, involving no detriment to anyone with the correct decision of the Tribunal left to have effect. The purpose identified in s.41(2) involves a recognition that the idyllic world of instant decision making is not possible so that it is left to the Tribunal to do that which is appropriate to secure the efficacy of the process. In short, s.41(2) directs attention to the purpose of ensuring that the mechanism of review, ‘hearing and determination’ in the words of the sub-section, is effective in the sense that there is, where necessary, a means of ameliorating or, if possible, eliminating, the potential undesirable consequences of decisions while a matter is awaiting hearing or a hearing is on foot but no decision has been made.[34]
[34] See the discussion of Moore J in Australian Securities and Investments Commission v Administrative Appeals Tribunal and Another [2009] FCAFC 185 (ASIC v AAT) at [5].
Conclusions as to the stay
In weighing the various considerations, I am persuaded to make a limited stay of the delegate’s decision subject to some conditions.
I do not consider there is any sound basis to stay the decision so far as it concerns the formal steps that would be taken to notify people about ASIC’s decision such as publication in the ASIC gazette and register. I see no sound basis for why the public, including existing clients of Olive, should not be made aware of the decision. Clients of Olive should be able to make up their own mind about continuing to do business with Olive based upon full information about what is going on. Clients of Olive are entitled to make up their own mind, assessing for themselves, the information that has raised issues about Olive’s business.[35] In many respects this position reflects a balancing of the competing public interest in allowing Olive to continue its business whilst the review process is taking place on the one hand, and ensuring that ASIC, as regulator, is performing its role which has as its cornerstone the protection of the public, as well as ensuring that the regulatory regime found in the Act is one that promotes the free disclosure of information to the market.
[35] Axicorp and Australian Securities and Investments Commission [2020] AATA 92, [30]; ASIC v AAT (supra) at [54].
I am persuaded to make a stay order because I consider it desirable to do what can be done to ameliorate the potential consequences to what are likely to be innocent third parties in the process; mainly Olive’s existing clients and employees. I am especially concerned about those consequences in the circumstances brought about by the COVID 19 pandemic. The consequences to those people both in terms of loss of employment in the case of employees, or loss of access to much needed financial advice in the case of superannuation clients, or even quite bluntly the loss of money arising from investments in the case of MDA clients, is so much greater in the current environment than it might otherwise be. I will impose a condition that existing clients be told about the existence of this review. I think such a condition is necessary so that these clients can make an informed decision about the matters that affect them. The findings I have made about the application under s.35 below are also relevant in this regard.
I also consider Olive’s interests favour the making of an order staying the decision because of the significant effect the decision will have on its business. In the absence of a stay Olive will not be able to carry on any of its business until the review is concluded. That will necessarily carry with it the potential for it to suffer significant loss until the matter is determined. Should the decision be favourable to Olive it will not be able to recoup its losses and will be left to rebuild its business. Again, although perhaps not quite so significantly, the fact of the COVID 19 pandemic makes the issue potentially a far more serious one than it might be in more usual circumstances.
I incline to the view that the interests of potential clients and the public interest can be protected in the period up until a final determination by the imposition of conditions upon a stay. I have expressed some concern about the need to protect the public. I accept that some of the steps taken by Olive may ameliorate any concerns. Nonetheless, I intend to impose conditions on any stay to further ameliorate any risk. The first condition of the stay will require that Olive not accept business of any kind from any new clients. The second condition of the stay will require that Olive furnish to ASIC on a monthly basis the reports and minutes of meetings referred to in its evidence which are being prepared and undertaken now on a monthly basis,[36] as well as any other audit or like reports that are prepared during the currency of the stay.[37] These were said to be in place to tighten the supervision of staff so as to ensure compliance with the various obligations imposed on Olive.[38] I should add that if there are no minutes being prepared of the relevant meetings then that will need to change, and minutes will need to be prepared. This is so ASIC can ascertain whether these measures referred to in the evidence are continuing to be applied, whether they are effective and, if necessary, to arm ASIC with the capacity to make any application that it might consider appropriate to vary the terms of the stay or have it revoked.
[36] Affidavit, Justin Jerome Richmond, 20 March 2020 at [27]
[37] Affidavit, Justin Jerome Richmond, 20 March 2020 at [30]; Affidavit, Justin Jerome Richmond, 17 March 2020 at [10](c) or reports like those referred to at [12](d),
[38] Affidavit, Justin Jerome Richmond, 20 March 2020 at [27]
I have considered making it a condition of a stay that Olive take all steps reasonably necessary to ensure that the review proceeds as expeditiously as possible. I will not make it a condition, but I do record my expectation that Olive for its part should ensure that the review proceeds as quickly as possible. This will require it to be able to file and serve its material for the final hearing reasonably quickly. In saying that there is a recognition that a very quick hearing may not be possible, but nonetheless it is desirable that the stay is in place for as short a time as possible even recognising that a very quick hearing is unlikely.[39]
[39] Australian Securities and Investments Commission v PTLZ [2008] FCAFC 164.
Finally, I note that s.41(3) gives power to the Tribunal to vary or revoke any order made under s.41(2). I should make clear that the absence of compliance with any of the conditions I have placed on the stay order that I will make or Olive’s failure do that which is necessary to ensure the review is heard quickly would be, in the view I take, a reasonable basis for an application under s.41(3).
Section 35
There is no issue concerning the power of the Tribunal to make an order that hearings proceed in private and that there be a prohibition on the publication and disclosure of the name of a party and about the evidence in the proceedings. The issue is whether one should be made.
Section 35 of the AAT Act provides:
(1) Subject to this section, the hearing of a proceeding before the Tribunal must be in public.
(2)       The Tribunal may, by order:
(a) direct that a hearing or part of a hearing is to take place in private; and
(b) give directions in relation to the persons who may be present.
(3) The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of:
(a) information tending to reveal the identity of:
(i)      a party to or witness in a proceeding before the Tribunal; or
(ii)      any person related to or otherwise associated with any party to or witness in a proceeding before the Tribunal; or
(b) information otherwise concerning a person referred to in paragraph (a).
(4) The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that:
(a) relates to a proceeding; and
(b) is any of the following:
(i)      information that comprises evidence or information about evidence;
(ii)     information lodged with or otherwise given to the Tribunal.
(5) In considering whether to give directions under subsection (2), (3) or (4), the Tribunal is to take as the basis of its consideration the principle that it is desirable:
(a) that hearings of proceedings before the Tribunal should be held in public; and
(b) that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and
(c) that the contents of documents lodged with the Tribunal should be made available to all the parties.
However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information.
(6) This section does not apply in relation to a proceeding in the Security Division to which section 39A applies.
The usual or overriding principle, the principle of open justice, is that proceedings are administered openly and in public.[40] That principle is enshrined in s.35(5). The issue is whether there is some reason, and some cogent or sound reason at that, to depart from the usual or normal position in this case.
[40] Downes and Jagot JJ in ASIC v AAT [2009] FCFCA 185 at [62].
The only matter relied upon by Olive to support its application for confidentiality over the proceedings and its involvement in them was the likely ‘harm’ to it: both reputational harm and other harm.[41] It put this against a backdrop of it not having been involved in proceedings of this kind before and its self-characterised good repute in the industry.
[41] Applicant’s submissions, 20 March 2020 at [40] – [41].
I do not consider those matters to be a cogent enough basis for departing from the usual position that would see the market and clients fully and freely informed of what is, in fact, going on in relation to Olive’s business. An objective bystander looking on is entitled to make her own assessment of the effect of the delegate’s findings and decision as well as the nature and relevance of the application to this Tribunal. That bystander properly informed would know that a review of the decision involves the Tribunal ascertaining for itself the correct or preferable decision. The Tribunal should not interfere in the process of open justice without good and cogent reason to do so. I do not consider that the anticipated harm to Olive is a good or a cogent reason to keep from the public, including clients of Olive, the fact of these proceedings and the matters that have given rise to them. There is no sound reason why Olive should not be in the same position as any other litigant or applicant in proceedings before the Tribunal.

I reject the application for orders under section 35 of the AAT Act.
Conclusion
The Tribunal makes the following orders:
1.Subject to Olive Financial Markets Pty Ltd (Olive) complying with each of the conditions set out in paragraphs 2. to 6. the operation of the Australian Securities and Investments Commission’s decision of 13 March 2020 to cancel Olive’s Licence under s.915C of the Corporations Act 2001 (Cth) (Act) (the decision) is stayed pending the hearing and determination of the review;
2.Despite paragraph 1. the decision is not stayed for the purposes of ss.922A and 915F(2) of the Act and r.9.1.02(m) of the Corporations Regulation 2001 (Cth) subject to a notation in the ASIC Gazette and ASIC Register that the cancellation of Olive’s licence has been stayed by the Administrative Appeals Tribunal pending the hearing and determination of Olive’s application for review under s.1317A of the Act;
3.By no later than 5.00pm on 24 April 2020 Olive is to give written notice to any person who it, its directors, employees, authorised persons or anyone else on its behalf provides or has provided financial services to since 1 January 2020 in the following terms:
On 16 March 2020 a delegate of ASIC made a decision to cancel Olive Financial Markets Pty Ltd’s (Olive) Australian financial services licence because the delegate was not satisfied that Olive had complied with various of its obligations under s.912A of the Corporations Act 2001 (Cth) and because the delegate considered that Olive was likely to contravene those obligations in the future.
On 17 March 2020 Olive made an application to the Administrative Appeals Tribunal (AAT) for a review of the delegate’s decision under s.1317A of the Corporations Act 2001 (Cth). The AAT has made an order staying the delegate’s decision pending the hearing and determination of the review. The effect of this is that Olive is able to continue providing financial services until the review is determined. The AAT directed Olive to inform you of these matters as a condition of the stay of the delegate’s decision.
4.By no later than 5.00pm on 28 April 2020 Olive is to serve upon ASIC an affidavit of a person having knowledge of the facts stated in it providing evidence as to who notification was given under paragraph c. and how such notification was given.
5.Despite paragraph 1. the decision is not stayed for the purpose of Olive, its directors, employees, authorised persons or anyone else on its behalf conducting business with any person who was not a person in receipt of the notice referred to in paragraph b. above. To avoid doubt, the purpose of this clause is to restrict Olive to conducting business with only those persons who were its clients on and after 1 January 2020 and before 17 March 2020 until the hearing and determination of the review.
6.Olive will furnish to ASIC on or before the last day of each month from the date of this order copies of all:
(i)reports of communications and advice given between advisers of Olive Services and those clients;
(ii)monthly audits of the complaints register;
(iii)minutes of fortnightly meetings with employees of Olive Services which are conducted for the purpose of monitoring operations at the CAR level and ensuring that potential compliance risks can be addressed in a timely manner;
(iv)minutes of monthly meetings between the executive team of Olive and compliance managers at Olive Services dealing with policies and measures that can be taken to ensure compliance with regulatory requirements and training of staff;
(v)any report or audits whether generated externally or internally concerning Olive’s compliance with regulatory requirements for that month.
7.The application for orders under s.35 is dismissed.
8.The parties may apply on 24 hours’ notice in writing should there be any matter that needs to be dealt with arising from these orders.

I certify that the preceding 52 (fifty -two) paragraphs are a true copy of the reasons for the decision herein of Member R Reitano

..............................[SGD]..........................................
Associate
Dated: 23 April 2020

Date(s) of hearing: 24 March 2020

Counsel for the Applicant: Michael Henry SC

Solicitors for the Applicant: Arnold Bloch Leibler

Counsel for the Respondent: Matthew Brady QC

Solicitors for the Respondent: Australian Securities and Investments Commission

Date(s) of hearing:	24 March 2020
Counsel for the Applicant:	Michael Henry SC
Solicitors for the Applicant:	Arnold Bloch Leibler
Counsel for the Respondent:	Matthew Brady QC
Solicitors for the Respondent:	Australian Securities and Investments Commission