Prasad and Australian Securities and Investments Commission

This matter concerned an application to the Administrative Appeals Tribunal for a review of a decision by a delegate of the Australian Securities and Investments Commission (ASIC). ASIC had issued a banning order prohibiting the applicant from providing financial services for a period of three years, based on concerns that he was not adequately trained or competent, had failed to comply with financial services law, and was likely to contravene financial services law. The applicant had been an authorised representative of Lionsgate Financial Group Pty Ltd and had provided advice to clients regarding superannuation and insurance products.

The Tribunal was required to determine whether the applicant was adequately trained or competent to provide financial services, whether he had complied with financial services law, and whether ASIC had reason to believe he was likely to contravene financial services law. These were the bases upon which ASIC’s power to make a banning order was enlivened. The applicant sought to argue that the three-year banning order was manifestly excessive.

The Tribunal found that while the applicant had not adequately addressed each of the specific breaches alleged by ASIC, his conduct in preparing statements of advice (SOAs) demonstrated a "complete disregard for the law." This was particularly evident in SOAs that were predominantly blank, undated, and did not identify the client, suggesting a "could not be bothered" attitude. Although the Tribunal agreed with the applicant that there were no serious matters suggesting he had not acted in the best interests of his clients, the material and serious failings in the preparation of SOAs were significant. The Tribunal rejected the applicant's argument that direct comparisons could be made with other cases involving less severe banning orders, emphasizing that each case is fact-dependent.

The Tribunal varied the banning order, reducing its duration from three years to eighteen months. This variation was based on the Tribunal's assessment of the seriousness of the breaches, particularly the inadequate preparation of SOAs, while acknowledging that the applicant had not been found to have acted against the best interests of his clients.