Poidevin and Australian Securities and Investments Commission

This matter concerned two applications for review before the Administrative Appeals Tribunal (AAT) brought by Mr Poidevin and Mr Rodr against decisions made by a delegate of the Australian Securities and Investments Commission (ASIC). These decisions had found the applicants had contravened financial services law and banned them from providing financial services. The core dispute revolved around the legal effect of the applicants' subsequent withdrawal of their applications for review, specifically whether the Tribunal retained the power to revoke a previously made confidentiality order.

The AAT was required to determine the operative effect of sections 42A(1A) and (1B) of the *Administrative Appeals Tribunal Act 1975* (Cth) concerning the withdrawal of applications. The central legal issue was whether the Tribunal, after an application for review has been withdrawn, retains the power to revoke ancillary orders, such as a confidentiality order, and whether the deeming provision in section 42A(1B) operates retrospectively or prospectively. A further issue was whether there was a public interest in publishing the preliminary decision, notwithstanding the withdrawal of the applications.

The Tribunal reasoned that the language of section 42A(1B) indicated a prospective, rather than retrospective, operation. It held that the phrase "is taken to have dismissed" signifies that the dismissal occurs at the point of notification of withdrawal, not at some earlier time. Consequently, the Tribunal concluded it retained the power to make ancillary orders after the withdrawal, provided they were not inconsistent with the deemed dismissal. The Tribunal found that revoking a confidentiality order was not inconsistent with the statutory provisions and that there was a public interest in publishing the preliminary decision, which had been made prior to the withdrawal.

The Tribunal ordered that the confidentiality order made on 20 December 2019 be revoked, and also revoked the stay order made on 7 February 2018, with immediate effect. This enabled the preliminary decision to be published.