Panganiban and Australian Securities & Investments Commission

This matter concerned an application by Mr Panganiban for a stay of a banning order made by the Australian Securities and Investments Commission (ASIC), and for confidentiality orders in relation to that application. ASIC had issued a banning order prohibiting Mr Panganiban from providing any financial services on the basis that he was not of good fame or character. Mr Panganiban sought to challenge this decision.

The Administrative Appeals Tribunal (AAT) was required to determine whether to grant a stay of the ASIC banning order and whether to make confidentiality orders. The central legal issue was whether there were cogent reasons to depart from the ordinary requirement of a public hearing, particularly in the context of a banning order under sections 920A and 920B of the Corporations Act 2001 (Cth). The Tribunal also considered the public interest in the timely disclosure of relevant information concerning financial services providers.

The Tribunal reasoned that while the statutory criterion for granting a stay was not expressly limited, a departure from the usual public hearing requirement necessitated "cogent reason by reference to the particular case." Citing ASIC v Administrative Appeals Tribunal, the Tribunal held that harm to reputation resulting from public awareness of a banning order was unlikely to constitute a sufficiently cogent reason, as such risk is inherent in the nature of a banning order. The Tribunal also noted that the scheme established by the Corporations Act, including the public interest in market knowledge, was a fundamental element in the decision-making process for stays. The Tribunal found that Mr Panganiban had not demonstrated a cogent reason to depart from the ordinary requirement of a public hearing.

Consequently, the Tribunal dismissed Mr Panganiban's application for a stay of the ASIC banning order and also dismissed his application for confidentiality orders.