Re Poidevin and Australian Securities and Investments Commission

[2018] AATA 124

Poidevin and Australian Securities and Investments Commission [2018] AATA 124 (25 January 2018)

Division:TAXATION & COMMERCIAL DIVISION

File Number:           2017/7111

Re:Simon Poidevin  

APPLICANT

AndAustralian Securities and Investments Commission

RESPONDENT

DECISION

Tribunal:Deputy President J Redfern

Date:25 January 2018

Place:Sydney

1. The Tribunal declines to make a confidentiality orders under s 35 of the Administrative Appeals Tribunal Act1975 (Cth).

2.    The parties shall prepare orders giving effect to these reasons. The orders shall not take effect until the date on which they are signed by the Tribunal.

.....................[sgd]...................................................

Deputy President J Redfern

CATCHWORDS

PRACTICE AND PROCEDURE – prohibition on providing financial services for five years – application for stay of operation of banning order in relation to director – whether stay order appropriate – scope of power to make order staying or otherwise affecting operation or implementation of decisions – whether power extends to affecting the entry into the ASIC register and publication in the Government Gazette  – where desirable to make stay order – whether confidentiality order appropriate – where inappropriate to make confidentiality order

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), ss 35, 41

Australian Securities and Investments Commission Act 2001 (Cth), s 1(2), 22
Corporations Act 2001 (Cth), ss 766A, 766B, 766C, 920A, 920B, 922A, 1041A, Chapter 7 – s 7 6080, Part 7.10 – s 1041, s 1041A

Corporations Regulations 2001 (Cth), rr 9.1.01 (n), 9.1.02(o)

CASES

Australian Securities & Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185; (2009) 181 FCR 130

Batros v Australian Securities and Investments Commission [2016] AATA 519
Bolton v Australian Securities and Investments Commission [2015] AATA 977
Drake v Minister for Immigration andEthnic Affairs (1979) 24 ALR 577
Panganiban v Australian Securities & Investments Commission [2016] AATA 703
Philip McLean v Australian Securities and Investments Commission [2016] AATA 22
Re Scott v Australian Securities and Investments Commission [2009] AATA 798; (2009) 51 AAR 114

Zarfati v Australian and Securities Investments Commission [2008] AAT 989; (2008) 106 ALD 225

SECONDARY MATERIALS

Regulatory Guide 98 Licensing: Administrative action against financial services licensees

REASONS FOR DECISION

Deputy President J Redfern

25 January 2018

BACKGROUND

1. On 29 November 2017 the Australian Securities and Investment Commission (ASIC) made an order under ss 920A and 920B of the Corporations Act2001 (Cth) (the Corporations Act) banning Simon Poidevin from providing financial services for five years.

2. At the relevant time, Mr Poidevin was Managing Director of Corporate Broking in the Equity Capital Markets Division of Bell Potter Securities Limited (Bell Potter Securities). Bell Potter Securities is licensed and provides stockbroking and financial advisory services to a range of private, corporate and institutional clients.

3. In brief, a delegate of ASIC found that Mr Poidevin had not complied with a financial services law, relevantly the market manipulation provisions under s 1041A of the Corporations Act, which enlivened the discretion to consider banning Mr Poidevin from providing financial services. In considering whether Mr Poidevin should be banned, the delegate had regard to ASIC’s Regulatory Guide 98 Licensing: Administrative action against financial services licensees, the nature of the contravention and Mr Poidevin’s personal circumstances and his excellent reputation, and decided that a banning order for five years was appropriate.

4. Mr Poidevin made an application to the Tribunal for the review of this decision on the following day. He also made applications for a stay of the banning order and for non-publication and confidentiality orders pursuant to s 35 of the Administrative Appeals Tribunal Act1975 (Cth) (AAT Act) pending the outcome of the review.

5. The applications in respect of the stay and confidentiality order were listed for an interlocutory hearing on 19 December 2017. The parties each provided submissions and evidence in support of the applications. While there is significant dispute between the parties about the findings of the delegate and whether a banning order is warranted, the underlying factual matters which are said to be relevant to this interlocutory application are agreed.

6. Mr Poidevin contends that the stay should be ordered to preserve the status quo pending the outcome of the review. He submits that he has reasonable prospects of succeeding, a stay would not be adverse to the public interest, particularly given he is prepared to offer undertakings pending the review, a significant period has elapsed since the alleged misconduct, which the delegate accepted was an isolated incident, and he will experience significant hardship and detriment, which could never be repaired.

7. Mr Poidevin also seeks a range of confidentiality orders under s 35 of the AAT Act, including orders that any hearing should be in private, his name should be withheld from publication and substituted with a pseudonym and confidentiality orders should be made restricting the publication or disclosure of evidence. He contends the orders are warranted because he would suffer reputational harm and damage beyond the usual damage faced by persons in his position because of his high profile. Any suppression orders would only be in place until the proceedings had been finalised and there would be ‘minimal impact’ on the transparency of the Tribunal proceedings.

8. ASIC contends that a stay should not be granted. Mr Poidevin’s prospects of success are weak. Banning orders are protective in nature and have a deterrent effect and the undertakings proffered are too narrow to have an effective protective purpose. There was no evidence to support the contention that Mr Poidevin’s application for review would be rendered nugatory and any hardship or financial impact of the banning order related to private interests which should not weigh heavily against the public purpose of protection.

9. ASIC also opposed the confidentiality orders on the basis that Tribunal proceedings should be administered openly and in public. Transparency and informing the market about regulatory action is an important part of an open review process and reputational harm is not sufficient to justify confidentiality or suppression orders. Mr Poidevin should not expect ‘special treatment’ simply because of his high public profile.

10. One of the issues raised by both parties in relation to the stay was the publication of the banning orders by ASIC in the Government Gazette and in its registers, which it is required to do under s 922A of the Corporations Act. Mr Poidevin seeks to stay the implementation of publication pending the outcome of the proceedings, either under the stay power or the confidentiality provisions. In contrast, ASIC opposes both orders relying on the basic principle that transparency is served by the public being aware of the banning orders made, the nature and extent of the contraventions alleged and the review process.

    STAY POWER AND CONFIDENTIALITY ORDERS – PRINCIPLES

11. The making of an application to the Tribunal for review of a decision does not affect the operation of the decision or prevent a decision-maker from taking action to implement it and a party must make an application to the Tribunal seeking specific orders to this effect (see s 41(1) of the AAT Act). The Tribunal has the power to stay the operation or implementation of a reviewable decision under s 41(2), to the extent that it considers that it is ‘desirable’ to do so, ‘for the purpose of securing the effectiveness of the hearing and determination of the application for review’. The Tribunal may impose conditions and determine the period of any stay (see s 41(6)). In exercising this discretionary power the Tribunal must take into account ‘the interests of any persons who may be affected by the review’.

12. While there is no statutory criteria for the exercise of the discretion, President Downes J helpfully set out a non-exhaustive list of factors to be taken into account when determining an application for a stay in Re Scott v Australian Securities and Investments Commission [2009] AATA 798; (2009) 51 AAR 114, at [4] as follows:

    1The prospects of success;

    2The consequence for the applicant of the refusal of a stay;

    3The public interest;

    4The consequences for the respondent in carrying out its functions depending upon whether a stay is granted or not;

    5Whether the application for review would be rendered nugatory if a stay were not granted; and

    6Other relevant matters, such as the length of time that the ban has already been in place and the gap between stay application and the hearing of the review.

13. The issue of confidentiality and the stay of banning orders made by ASIC was considered by the Full Court of the Federal Court in Australian Securities & Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185; (2009) 181 FCR 130. The Full Court (per Downes and Jagot JJ) observed that it is for the Tribunal to identify and consider the ‘relevant interests’ for the purposes of s 41(2). The nature of the reviewable decision will affect the identification of those interests and it is relevant to consider the statutory scheme under which the reviewable decision was made (at [51]). In the case of a banning order, it was apparent from the relevant provisions that the person who is the subject of a banning order is ‘only one of many people whose interests may be affected by the review’ and would also include ‘the person’s existing and potential clients, as well as the public at large’ (also at [51]). Their Honours noted at [52] and [53] as follows:

    52. Determining whether the making of an order under s 41(2) of the AAT Act is desirable requires resolving these potentially competing interests. In this process of resolution the scheme embodied by the legislation under which the banning order is made is central. The context set by that scheme is a "fundamental element" in the formation of the opinion according to law (The Queen v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322 at 329). The scheme discloses that a banning order protects the public. It is intended to protect the public from obtaining financial services from a person who (amongst other things) has not, or ASIC reasonably believes has not, complied with a financial services law or has had their Australian financial services licence suspended or cancelled (s 920A(1)).

    53. The structure of the scheme also indicates Parliament’s assessment of the appropriate resolution of the competing interests of persons who may be affected by a banning order. Other than in limited circumstances a banning order cannot be made without giving the proposed recipient a right to be heard and to make submissions in private to ASIC (s 920A(2)). A banning order must be accompanied by a statement of reasons (s 920F(1)). If, and only if, ASIC makes a banning order is it required to make public that fact (ss 920E(2) and 922A). For the AAT to form an opinion under s 41(2) of the AAT Act (that it would be desirable and in the "interests of any persons who may be affected by the review" to make an order staying or otherwise affecting the operation or implementation of ASIC’s decision) these elements of the statutory regime, and the balance between the competing interests that they represent, must be treated as a fundamental element in the weighing of the competing considerations.

14. It is therefore apparent that factors such as the interests that the exercise of the statutory power are intended to serve, the nature of the procedures leading to the reviewable decision and the specificity and strength of the findings made will be relevant considerations in determining whether it is ‘desirable’ to grant a stay.

15. Mr Poidevin has also sought confidentiality and suppression orders in respect of the hearing, the evidence and his name. Under s 35 of the AAT Act, the Tribunal’s review function generally involves a public hearing, the public availability of evidence, and the publication of Tribunal decisions and reasons. The Tribunal may make an order for a private hearing or for suppression or confidentiality orders under subs (2), (3) and (4) but the desirability of the publicity of Tribunal proceedings must be taken as the basis of the Tribunal’s consideration in determining any application to depart from the general statutory obligation requiring a public hearing (refer ss 35(1) & (5) of the AAT Act). Notwithstanding this, s 35(5) requires the Tribunal to ‘pay due regard to any reasons in favour of giving such a direction, including….. the confidential nature of the information’. As observed by the Tribunal in Panganiban v Australian Securities & Investments Commission [2016] AATA 703 (per Taylor SM) at [12]:

    The confidential nature of any information relevant to the review proceedings is one of the potential reasons that may favour an order limiting the publicity that would otherwise apply to the review process. ……….. But mere apprehension about the potential for reputational harm directly resulting from the reviewable decision will usually not provide a persuasive basis for restricting the publicity of review proceedings.

16. In ASIC v AAT Downes and Jagot JJ emphasised (at [74]) that s 35(1) of the AAT Act establishes a ‘norm’ that proceedings before the Tribunal will be in public and when the Tribunal is considering the exercise of its powers under s 35(2) it is ‘required to form a state of satisfaction which recognises the existence of the norm and the values it is intended to protect’. Relevantly, their Honours observed at [75] and [76] as follows:

    75. Suppression orders are rarely made in courts, even though publicity undoubtedly disadvantages the parties. Criminal proceedings are a good example. In the AAT itself facts which parties would not wish to be published and which may disadvantage them are frequently published. Social security applications are a good example. The reason these matters are not kept secret is the overriding importance of justice being administered openly and in public. It is not readily apparent why persons in businesses should be treated differently even when, for example, employees may be disadvantaged.

    76. When measured against the existence of the norm of a public hearing and the scheme established by the Corporations Act with respect to banning orders, it is apparent that the AAT would need some cogent reason by reference to the particular case to depart from the ordinary requirement of a public hearing. It is difficult to accept that harm (even serious harm) to the recipient’s reputation resulting from public awareness of the banning order will be a sufficiently cogent reason to justify the grant of a stay in most cases. This is because the risk of harm of this type is inherent in the nature of a banning order.

17. In summary, Tribunal proceedings should be conducted openly and in public unless there are ‘sufficiently cogent reasons’ why this should not be the case. Reputational damage will generally not be enough and it is for the applicant to satisfy the Tribunal that there should be a departure from the ‘norm’.

    REVIEWABLE DECISION

18. Having regard to the authorities, it is relevant to examine the reviewable decision, the power exercised by the delegate and the statutory context for the decision in considering these interlocutory applications.

19. ASIC is a statutory authority charged with responsibility for administering certain laws relating to corporations, financial services, financial markets and those who participate in the financial system. Under s 1(2) of the Australian Securities and Investments Commission Act 2001 (the ASIC Act), ASIC must strive to, among other things, ‘promote the confident and informed participation of investors and consumers in the financial system’.

20. Chapter 7 of the Corporations Act deals with the regulation of financial services and markets and establishes a licensing regime in respect of persons or entities that carry on a financial services business in Australia. Section 760A provides that the main object of Chapter 7 is to promote, among other things, fair, orderly and transparent markets for financial products. Shares traded on the Australian Securities Exchange (ASX) are financial products. ASIC administers the licensing regime and is empowered to, relevantly, make an order prohibiting a person from providing financial services. Part 7.10, where section 1041A is located, provides for market misconduct offences.

21. The conduct which is the subject of the findings of contraventions by the delegate relate to trading in DirectMoney Ltd in the period 14 July 2015 to 23 July 2015. The basis for these findings and the reasons for the banning order are contained in a statement of reasons dated 29 November 2017. The following is a summary of the key aspects of the conduct which was the subject of the ASIC investigation and the findings of the delegate.

22. DirectMoney Pty Ltd was a marketplace lending private company established in 2014 that was acquired by Basper Ltd as part of a backdoor listing, sometimes known as a reverse takeover, in July 2015. Under the arrangement, Basper entered into a conditional share agreement to acquire all of the share capital in DirectMoney Pty Ltd and undertook a capital raising for this purpose. The proposed acquisition and capital raising was announced to the market on 24 March 2015. Bell Potter Securities was the lead manager on the capital raising and approximately 39% of the funds raised were sourced from clients of Bell Potter Securities' institutional desk in Hong Kong. Mr Poidevin introduced DirectMoney Pty Ltd to Bell Potter Securities and was the team leader on the capital raising.

23. Following the capital raising and acquisition, Basper changed its name to DirectMoney Ltd, relisted on the ASX and commenced trading on the ASX as DirectMoney Ltd on 13 July 2015 under the ASX code ‘DM1’. Mr Poidevin purchased shares in DirectMoney Ltd in his own right, both through the capital raising and after DirectMoney started trading.

24. DirectMoney commenced trading on the ASX at 24 cents and after the first day of trading, there was a fall of about 27% in the share price from its opening price. Early on 14 July 2015, Bell Potter Securities decided to invest $200,000 in DirectMoney and between 14 and 23 July 2015 entered 69 bids for DirectMoney shares that caused 92 executed trades, representing 39.15% of all trades executed on that day in the period. Bell Potter Securities purchased nearly 26% of the total value of the DirectMoney shares traded.

25. In May 2016 ASIC commenced an investigation into the share trading in DirectMoney in this period and identified internal Bell Potter Securities emails and recorded telephone discussions between Mr Poidevin and others, including Bell Potter Securities share trader, Mr Damian Rodr, relating to trading in the DirectMoney shares. ASIC examined Mr Rodr, Mr Poidevin and a number of other witnesses from Bell Potter Securities about the trading. The outcome of the investigation was referred to an ASIC delegate, who notified Mr Poidevin of the concerns about the trading by Bell Potter Securities in DirectMoney and Mr Poidevin’s role in that trading. Mr Poidevin was invited to attend a hearing to provide evidence and submissions to the delegate in response to the concerns notified. Mr Poidevin participated in the hearing and was legally represented. The hearing was in private.    

26. Following the hearing, the delegate made a banning order and provided written reasons to Mr Poidevin.

27. The delegate noted the role of Bell Potter Securities and Mr Poidevin in the fundraising and relevantly noted, at [42], that ASIC's analysis of the share trading concluded that the Bell Potter Securities House Account transactions in DirectMoney in the relevant period had a 'disproportionate effect' on the price of DirectMoney compared to the rest of the market's transactions. The delegate further noted that the ASIC analysis (which she acknowledges was disputed by Mr Poidevin) concluded that these transactions had some or all of the following effects:

    (a)increased, or restored, the last traded price of DirectMoney;

    (b)increased the number of bids for DirectMoney on the market;

    (c)increased the best (that is, the highest) bid price of DirectMoney on the market;

    (d)increased the best (that is, the lowest) Ask price of DirectMoney on the market; and/or

    (e)increased the volume of DirectMoney traded.

1. After outlining evidence obtained as a result of the investigation, including records of telephone discussions between Mr Poidevin and Mr Rodr, and taking into account submissions made and evidence provided by Mr Poidevin at the hearing, the delegate concluded (at [160] to [162] of the Reasons) as follows:

   160. On all the information before me and for all of the reasons discussed above, I accept ASIC's analysis of the relevant transactions in DMI [DirectMoney] and I am satisfied that (to use the terminology of the High Court in JM) the dominant purpose of Mr Rodr's transactions in DMI in the relevant period was to set or maintain the price of DMI at a particular level. In particular, I am satisfied the dominant purpose of all of Mr Rodr's transactions in DMI from 3:42pm on 14 July 2015 (see paragraphs 60 to 64 above), from 4:01pm on 15 July 2015 (see paragraphs 74 to 76 above) and from 4pm on 23 July 2015 (see paragraphs 93 to 99 above) was to set or maintain a particular price for DMI.

   161. I am also satisfied that for all the above reasons, Mr Poidevin instructed, or at the very least positively encouraged, Mr Rodr to enter transactions for DMI that had the effect of creating and maintaining an artificial price for DMI.

   162. Accordingly, I am satisfied that Mr Poidevin took part in the transactions carried out by Mr Rodr that had the effect of creating and maintaining an artificial price for DMI, contrary to section 1041A, a financial services law (subparagraph 920A(1)(e)).

2. Having found that Mr Poidevin had not complied with a financial services law, the delegate proceeded to consider whether Mr Poidevin should be banned from providing financial services and, if so, the period of any banning. The delegate noted (at [170]) that a banning order 'contributes to the public interest by limiting the conduct of financial services business to people with the requisite capacity and integrity to provide the services in a lawful and competent manner'. The delegate also noted (at [173]) that there was 'a strong public interest in maintaining financial markets that are free from manipulation'.

3. In applying these principles to the circumstances of Mr Poidevin's case, the delegate noted (at [174] to [178]) as follows:

   174. I am satisfied that Mr Poidevin's years in the financial services industry have been otherwise unblemished and that the conduct in this matter seems to have been relatively isolated in nature. I am, however, concerned that Mr Poidevin's conduct was serious, it took place while he was in a very senior position and he has not begun to address it.

   175. Mr Poidevin's personal circumstances are that he is the main provider for his family, including his mother and his siblings. As stated above, the character references and other information provided by Mr Poidevin show that he has an excellent reputation and the support of reputable members of the community. A banning order will be damaging to Mr Poidevin's reputation and will cause personal and financial hardship, however there is a need to balance the hardship that Mr Poidevin may suffer against the public interest considerations.

   176. In determining an appropriate period of banning, I have had regard to RG 98 and to the "Factors and examples of conduct relating to specific periods of banning" listed in Table 2. In my view, the conduct which I found established falls in the lower mid end of the "Banning for 3 – 10 years" category in Table 2. I consider that the relevant factors in this matter are that it involved conduct inconsistent with the orderly operation of a financial market, adverse impact on confidence in or the integrity of a financial market and disregard for the law and compliance with regulations.

   177. I consider that a banning order for five years is appropriate.

   178. The appropriate order is that Mr Poidevin be prohibited from providing any financial services for five years.

4. Mr Poidevin was notified of this decision by letter dated 29 November 2017.

   SHOULD A STAY BE GRANTED?

5. Counsel for Mr Poidevin relied on Mr Poidevin’s statements in support of the application dated 30 November and 14 December 2017 and a statement dated 27 June 2017, which was relied on in the ASIC proceedings and was attached to the submissions in reply. Mr Poidevin was not cross-examined for the purposes of the application and his evidence was accepted by ASIC, although it was contended that the evidence fell short of establishing some aspects of the submissions.

6. Mr Poidevin’s statements focused on matters relating to his personal circumstances. The written submissions made on his behalf at the ASIC hearing and the documents and evidence provided to the delegate were attached to Mr Poidevin’s first statement. The witness statement provided by Mr Poidevin to the delegate was attached to his submissions in reply. ASIC provided detailed submissions, which included references to the delegate’s decision and copies of the documents that were either referred to by the delegate or provided to the delegate as part of ASIC’s investigation. The interlocutory hearing focussed on the legal principles, Mr Poidevin’s personal circumstances and the merits and significance of the decision under review. The submissions and evidence relied on is referred to below in more detail addressing the relevant considerations.

   Prospects of success in obtaining a more favourable outcome

7. Counsel for Mr Poidevin submitted that it was not the role of the Tribunal to conduct a preliminary hearing of the review application but rather to consider whether there are facts or circumstances which, if established in the substantive hearing, would provide a basis for success or whether there are points of law raised which, if sustained, would lead to a different outcome).  

8. It was contended that the decision of the delegate depended on the rejection of the evidence of Mr Poidevin, who was described by the delegate to be a man with an ‘unblemished’ 30 year career and an ‘excellent reputation’. Mr Poidevin would give evidence about his role in the relevant share trading at any substantive hearing and there were prospects this evidence would be accepted. It was also contended that the delegate misapplied the relevant legal tests and ignored evidence provided by Mr Poidevin. For example, the delegate ignored the requisite legal standard to establish a contravention of s 1041A of the Corporations Act and made no finding that Mr Poidevin himself had engaged in the alleged conduct with the sole or dominant purpose of creating or maintaining an artificial price for DirectMoney shares.

9. The finding that Mr Poidevin had directly issued instructions, or at the very least conveyed encouragement, to Mr Rodr to enter trades was directly at odds with evidence provided by both Mr Poidevin and Mr Rodr. The delegate’s finding that Mr Rodr had the requisite sole or dominant purpose was at odds with the absence of any motive by Mr Rodr to have this purpose and was contrary to Mr Rodr’s evidence in any event. The delegate failed to have any regard to evidence provided by Mr Poidevin about Mr Rodr’s trades which suggested those trades were legitimate. The delegate’s exercise of discretion to ban Mr Poidevin, given the delegate’s findings that Mr Poidevin had an unblemished career and the conduct was isolated, is a matter that has prospect of being overturned on review.

10. ASIC agreed it is not the role of the Tribunal to conduct a preliminary hearing of the review application but contended it was relevant for the Tribunal to examine, in light of the evidence before it, whether Mr Poidevin’s prospects were ‘sufficient to justify the grant of the interlocutory order’. It was submitted that Mr Poidevin’s prospects are weak. The delegate’s findings were primarily based on undisputed documentary evidence, including compelling evidence, such as transcripts of telephone discussions between Mr Poidevin and Mr Rodr and Mr Poidevin and other relevant parties about DirectMoney share trades. There was little or no prospect that Mr Poidevin’s evidence would change the outcome of the review and reliance on alleged legal errors in the delegate’s decision is irrelevant for the purposes of merits review. Simply attacking the delegate’s decision is not sufficient to succeed and Mr Poidevin has not provided any substantial additional or new material that was not available to the delegate that would improve his prospects of success on review.

11. It is common ground that it is not the role of the Tribunal to conduct a preliminary hearing of the review application. However, ASIC contends, and this is where the parties differ, that it is appropriate for the Tribunal to examine the available evidence to determine whether a stay is warranted. ASIC advanced these submissions by taking the Tribunal to some of the evidence relied on by the delegate and extracts from the decision. Counsel for Mr Poidevin submitted that, in essence, ASIC’s contentions asked the Tribunal to delve into facts and make a preliminary assessment of the review, which was precisely what ASIC had conceded should not be done.

12. The task of the Tribunal is somewhere between these two submissions. Clearly, it is not the role of the Tribunal in an interlocutory application of this nature to conduct a review of the merits or strength of the arguments, even on a preliminary basis, because such an undertaking would not only be lengthy but it would be unlikely to take into account the possibility of further evidence and submissions that may be more appropriately advanced at the substantive hearing. Review by the Tribunal is a review of the merits to make the correct or preferable decision (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, at 589). The matter must be considered afresh. While there may be questions raised about the credibility and weight of new evidence and submissions not previously raised, an applicant would not be precluded from raising any new issues and evidence at the substantive hearing.

13. The Tribunal is, however, at least obliged to determine whether there are facts or circumstances or points of law that may be argued at a substantive hearing which may lead to a different result (see Zarfati v Australian and Securities Investments Commission [2008] AATA 989; (2008) 106 ALD 225). The Tribunal is not bound by the findings of the delegate but the decision nonetheless provides a sound basis for this assessment, particularly, as in this case, where the decision is detailed and discloses the evidence relied on, the findings of fact made and the reasoning process that led to the conclusions reached by the delegate. If the reviewable decision discloses findings and reasoning that an applicant cannot or does not challenge, this would be critical to the issue of prospects and would be a significant factor that would weigh against the granting of a stay. It is incumbent on the applicant for a stay to establish the existence of such facts and circumstances or the possibility of legal error that may lead to a different result, through new evidence or submissions that were not raised before the delegate or by contesting findings of fact or conclusions of law (or a combination of both) that are open to challenge.

14. In this case, it is not apparent that Mr Poidevin seeks to advance new evidence but he submits that it is open to the Tribunal on a substantive review to form a different view of the evidence in the application of the law to the facts of the case than the view formed by the delegate.

15. The ground for the banning order by the delegate was the finding of a contravention by Mr Poidevin of s 1041A of the Corporations Act. Section 1041A provides:

    Market manipulation

    A person must not take part in, or carry out (whether directly or indirectly and whether in this jurisdiction or elsewhere):

    (a)  a transaction that has or is likely to have; or

    (b)  2 or more transactions that have or are likely to have;

    the effect of:

    (c)  creating an artificial price for trading in financial products on a financial market operated in this jurisdiction; or

    (d)  maintaining at a level that is artificial (whether or not it was previously artificial) a price for trading in financial products on a financial market operated in this jurisdiction. [Emphasis in original]

16. The delegate reviewed the authorities and concluded that the primary issues in determining whether there had been contravention of s 1041A by Mr Poidevin was, firstly, whether the sole or dominant purpose of (any of) Mr Rodr’s transactions in DirectMoney in the relevant period was to set or maintain the share price of DirectMoney at a particular level and, secondly, whether Mr Poidevin took part in any of the relevant transactions.

17. The delegate relied on ASIC’s analysis of trading undertaken by Bell Potter Securities in the relevant period, which included at [41] the following findings:

    (e)The Bell Potter House Account’s trades in [DirectMoney] caused 21 out of a total of 29 price increases (that is, 72.41%), whereas the volume of [DirectMoney] bought represented only about 3.9% of the total market volume.

    (f)The Bell Potter House Account caused seven out of a total of eight price increases that occurred after 3:40pm on the trading day.

    (g)The Bell Potter House Account was party to the last trade of the day in [DirectMoney] on seven of the eight trading days (that is, 87.5%) and 71.4% of these trades caused an increased closing price.

    (h)On 22 occasions, the Bell Potter House Account entered bids for [DirectMoney] soon after the price of [DirectMoney] fell and that either caused, or would have caused, the price of [DirectMoney] to be restored back to the price it was beforehand.

    (i)The Bell Potter House Account “broke the market” 12 times in a total of 26 trades in [DirectMoney] but bought only 39.9% of the available volume.

    (j)Apparently contrary to the instruction [from a senior manager of Bell Potter Securities not to buy any more] “than 20% of the volume in [DirectMoney] shares on any day”, the Bell Potter Securities House Account acquired over 20% of the total volume of [DirectMoney] traded on every day from 14 July to 23 July 2015, apart from 17 July 2015.

18. The delegate noted that the calculations on which ASIC’s analysis was based was not disputed, however, the conclusions of the analysis was. The delegate considered expert opinion provided by Mr Poidevin from two witnesses but identified shortcomings in the reports and rejected the conclusions of those experts. The delegate also relied on transcripts of telephone contact between Mr Poidevin and Mr Rodr and the trading in DirectMoney following a number of these conversations. The delegate referred to the evidence of both Mr Poidevin and Mr Rodr and it is implicit (at [159]) that the delegate did not accept their evidence on a number of critical issues.

19. The delegate found that Mr Poidevin ‘did in fact convey to Mr Rodr instructions, or at the very least, encouragement to enter transactions’ for DirectMoney in order to improve or at least maintain the price of DirectMoney shares. The delegate also found that the dominant purpose of all of Mr Rodr’s transactions in DirectMoney from 3:42pm on 14 July 2015, 4:01pm on 15 July 2015 and 4pm on 23 July 2015 was to set or maintain a particular price for DirectMoney. In reviewing the delegate’s decision, it is apparent that these findings were based on the content of certain recorded telephone discussions between Mr Poidevin and Mr Rodr and between Mr Rodr and Mr Poidevin and others, the evidence of telephone calls between Mr Poidevin and Mr Rodr at particular times (the detail of which were not recorded) and the effect and timing of trading in DirectMoney through the Bell Potter Securities House Account.

20. This evidence is circumstantial in that there is no direct evidence or admissions made by Mr Poidevin in any of these discussions or emails and he did not himself undertake the trading. Inferences were drawn from this evidence which, on the face of it, were available to the delegate, particularly, as found by the delegate, in the absence of plausible explanation to the contrary. However, it is possible the Tribunal may accept Mr Poidevin’s evidence or the evidence of Mr Rodr and Mr Poidevin’s experts about the nature of the trading or that it may accept the submissions made by Mr Poidevin’s representatives about the legal questions that require determination to be satisfied about contravention of s 1041A. In other words, it is possible that after a contested hearing the Tribunal may not be satisfied that the inferences drawn by the delegate are established to the degree of satisfaction required for serious market offences.

21. The question of whether contraventions of the market manipulation provisions are established raises complex issues of law and fact. Based on the material before me, I am therefore satisfied that there is sufficient evidence about prospects, subject to the other considerations, to warrant a stay.

    Consequences for Mr Poidevin and whether the review application would be rendered nugatory

22. It was submitted that hardship to Mr Poidevin is relevant to the Tribunal’s discretion. Mr Poidevin had already endured significant hardship in the matter and if the stay is not granted, he would suffer further hardship. His livelihood depends on his work in the securities industry and despite his status as a public figure; he would find it difficult to obtain alternative remunerative work. Mr Poidevin has significant familial financial responsibilities which he would not be in a position to meet if he is unable to continue working. In addition, the scope of the ban is broader than the alleged impugned conduct. However, one of the most significant concerns pressed by Mr Poidevin, which also formed the basis for his claims for confidentiality and suppression orders, is that if a stay is not granted, the banning order and its publication would have an immediate and lasting impact on his future professional prospects, even if it was later set aside by the Tribunal. Mr Poidevin’s professional success depends on his excellent reputation in the industry and if the decision was allowed to take affect but the delegate’s decision is subsequently overturned, his reputation would be immediately and irreversibly tarnished, regardless of the outcome of the review. It was further submitted that the failure to grant a stay would render the review nugatory in the sense that it would deprive Mr Poidevin of the opportunity to effectively pursue the review even though there are reasonable grounds to believe he might succeed.

23. Mr Poidevin submitted that he faced detriment in excess of the ordinary damage faced by persons in his position. He is a public figure by virtue of his successful career in Rugby Union and as a television commentator and philanthropist. He is a recipient of the Medal of the Order of Australia (OAM) and has been prominently involved with a number of charities and philanthropic causes. It was submitted that there would be significant irreversible harm if non-publication orders are not made, including orders staying the implementation of the delegate’s decision which also require the publication of the decision in the Government Gazette and the ASIC Register.

24. ASIC accepts the banning order is an impost but contends that the public protective purpose of the banning order should be given paramount consideration over Mr Poidevin’s private interests. There was little evidence about the past hardship and costs incurred or Mr Poidevin’s current financial circumstances. Relevantly, there was no evidence about the precise financial impact the banning order would have. The contention that the banning order was too broad should be given little weight. Mr Poidevin’s role involved him providing financial services and the offending conduct was directly related to his role in a capital raising for DirectMoney.

25. In respect of the contention that there would be an immediate and lasting effect on Mr Poidevin’s reputation, counsel for ASIC submitted that there is ‘no rationally probative evidence’ establishing a real risk Mr Poidevin would not be restored to his former position if he succeeds or that he could not return to his role at Bell Potter Securities. The references from colleagues, who refer to the impugned conduct, suggest Mr Poidevin would not lose the respect of his peers. Mr Poidevin’s ‘imprecisely articulated and general apprehension’ about reputational harm should not satisfy the Tribunal that stay orders are desirable or appropriate. In any event, harm to reputation, even if serious, is not a sufficiently cogent reason to justify a stay in most circumstances (see ASIC v AAT at [76]).

1. Mr Poidevin relied on his statements, which set out his sporting history and achievements. Mr Poidevin played Rugby Union at state, national and international level for over 12 years. He was the captain of the Australian Wallabies in 1986/7 and was inducted into the Sport Australia Hall of Fame in 1991 and the Australian Rugby Hall of Fame in 2014. There can be no dispute that Mr Poidevin is an Australian with a significant reputation who is well known to the public. He was awarded an OAM in 1988 and a Centenary Medal in 2003. He has been a sports commentator for over 10 years and has been, and is currently, involved with a number of charities. Mr Poidevin’s contention, which I accept and do not understand ASIC to dispute, is that Mr Poidevin has a significant public profile that has endured over the years since his retirement from Rugby Union.

2. I also accept that, because of his public profile and reputation, Mr Poidevin is likely to experience more media coverage about the banning order than other participants in the financial services industry. Whether this media coverage would be disproportionately negative is difficult to assess. Mr Poidevin submits, and I accept, that he has significant reputational capital. It may be that this reputational capital will be sufficient to assist Mr Poidevin in persuading others to suspend judgement pending the outcome of the review and to restore any negative impact on his reputation if he is successful. The nature and extent of harm to Mr Poidevin’s reputation is speculative. ASIC’s submissions are correct in that there is no expert evidence about these matters. On the other hand, it is common sense that a person with Mr Poidevin’s public profile and reputation is likely to be more adversely impacted than others. It is inevitable there will be media interest, which is why Mr Poidevin has not only sought a stay of the banning orders but a stay of the publication of those orders. He has sought confidentiality and suppression orders and it is clear from his submissions that these matters are of critical importance to Mr Poidevin.

3. The confidentiality and non-publication orders are inextricably linked. For instance, if the operation and implementation of the banning orders, including publication, is not stayed confidentiality orders would have little utility. In the usual course, and as provided for by s 922A and the Corporations Regulations 2001 (Cth) (the Regulations), the orders would be published in the Government Gazette and on the ASIC Registers. The information would therefore be in the public domain. As submitted by ASIC (refer below), and I accept, there is no power to stay the publication of the orders if the Tribunal has not ordered a stay of the banning orders (see Batros v Australian Securities and Investments Commission [2016] AATA 519).

4. There are two aspects to the application for a stay. One aspect is about the impact of the banning order on Mr Poidevin’s role. The other is about the impact publication orders, which are a consequence of the banning orders, would have on Mr Poidevin’s career and reputation.

5. On the question of the impact of the banning orders on Mr Poidevin’s role, both parties agree that the definition of providing financial services is broad and would therefore cover the key aspects of his role. Counsel for Mr Poidevin contends that the orders are beyond what is required for public protection, whereas counsel for ASIC contends that the orders are appropriate because they are ‘commensurate’ with Mr Poidevin’s role.

6. Section 766A of the Corporations Act sets out when ‘a person provides a financial service’. Relevant to this case, it includes providing ‘financial product advice’ (defined in s 766B) and ‘dealing in a financial product’ (defined in s 766C). Those definitions cover a range of activities, however, it is not clear which parts of Mr Poidevin’s role would be prohibited and which would be allowed. There is no evidence or submissions about this. Nor is it clear how the order could be restricted to ensure that conduct along the lines of the impugned transactions did not occur in the future. Again, there is no evidence or submissions about this. It is for Mr Poidevin to establish these contentions to the satisfaction of the Tribunal. In the absence of evidence, I am not satisfied that the banning order is too broad or that the order should be narrowed in its terms pending the review.

7. ASIC’s submissions that Mr Poidevin has not provided detailed evidence about his financial circumstances is to be accepted. There is no evidence as to whether Mr Poidevin would be required to cease employment or take a leave of absence from his role as Managing Director of corporate broking in the Equity Capital Markets Division of Bell Potter Securities. His evidence, which is not contested, is that he would face financial hardship. I accept Mr Poidevin has suffered hardship and cost, even though there is no evidence about the extent of the costs incurred. I also accept that he will sustain further financial costs in pursuing his review but this is not a reason to order a stay. These costs would be borne in any event. The critical issue when considering this factor is whether the Tribunal can be satisfied on the available evidence that the consequences of refusing the stay will cause hardship or, more significantly, render the review nugatory.

8. There is no evidence Mr Poidevin would not be able to return to his role if he is successful and the banning order is set aside. Accordingly, I am not satisfied this review would be rendered nugatory unless a stay of the banning order is granted. I am satisfied there will be some financial impact on Mr Poidevin if the order is not stayed, although the nature and extent of this cannot be assessed on the evidence before me. As such, I give this consideration some weight but note that Mr Poidevin’s private interests must be weighed against the public interest of protection.

9. In so far as Mr Poidevin seeks a stay to advance his submissions on confidentiality and non-publication, it is relevant to consider with this aspect of the application in the context of Mr Poidevin’s application for confidentiality orders under s 35 of the AAT Act.

10. If a stay of the banning order is granted, I am satisfied the Tribunal may also stay the publication of the order. However, I consider that this is not desirable or appropriate in the circumstances of this case and accept ASIC’s submission that there is a public interest in the terms of the banning order being published, as contemplated by section 922A of the Corporations Act and the Regulations.

11. The submission made on Mr Poidevin’s behalf is that the implementation of the decision of the delegate, which includes the publication of the order in the Government Gazette and the ASIC Register, has the potential to tarnish his reputation and, as he argues, render the review nugatory in a practical sense. While I accept the contention and understand the reasons for Mr Poidevin’s concerns, I am not satisfied on the evidence that the publication of the decision will have an irretrievable and lasting impact on his reputation. The reasons for this are outlined above and in more detail in considering Mr Poidevin’s application for confidentiality orders. As already noted, the confidentiality and non-publication orders are linked. If the operation and implementation of the banning orders, including their publication, is not stayed, confidentiality orders would have little utility. Conversely, if confidentiality orders are not made, any stay of the implementation of the decision through publication, would equally have little utility.

    Public interest and consequences for ASIC in carrying out its functions

12. Mr Poidevin submits that the public interest considerations require the Tribunal to consider whether there is ‘any real likelihood that the applicant would use the benefit of that stay so as to inflict on the public the same conduct which led to the banning order being sought in the first place’ (Philip McLean v Australian Securities and Investments Commission [2016] AATA 22 at [15]). It is further submitted that the public interest would be sufficiently protected because Mr Poidevin was prepared to give undertakings, pending the determination of the substantive review, that he would not communicate by any means with designating trading representatives at Bell Potter (of which there were currently two) or in any other firm wherever they are located or with any member of the Bell Potter Institutional Sales Division, wherever they are located (see Statement of Mr Poidevin dated 30 November 2017 at [28]). This undertaking was ‘aimed squarely’ at the alleged impugned conduct because it would prevent Mr Poidevin from engaging with persons in the position of trading securities and persons involved in the Bell Potter Institutional Sales Division, either locally or internationally.

13. It was also submitted that Mr Poidevin has already suffered acutely in terms of time, cost and embarrassment which made it extremely unlikely that he would engage in any such conduct in the future. The fact that ASIC was not able to point to any person or entity who had been disadvantaged or impacted by the alleged conduct is also said to be relevant. In any event, Mr Poidevin had expressed that he understood the seriousness of the allegations and the likelihood he would engage in any contravening conduct in the future was ‘remote at best’.

14. Prior to the hearing, Mr Poidevin proffered further undertakings (see Statement of Mr Poidevin dated 14 December 2017 at [31]) to the effect that if he became aware of or had any involvement in transactions where Bell Potter Securities was trading as principal, he would seek approval for such transactions by the managing director or delegate and would ensure that such transactions were only executed by the head designated trading representative in accordance with Bell Potter Securities’ internal policy on trading. He also stated that he would give undertakings to actively and in good faith participate in a program of compliance training conducted by an appropriately qualified training provider with relevant industry expertise, focussing on compliance with the Corporations Act in respect of market trading.

15. ASIC contends that this evidence and the submissions in support of the application should be given little weight. Banning orders under the Corporations Act are made to protect the public interest and have also been recognised as having a deterrent purpose in seeking to uphold proper standards of behaviour. There are significant public interest concerns in this case because Mr Poidevin is a senior executive at a large stockbroking firm and his role involves, among other things, management of capital raisings for listed companies. Given this role and its importance and potential to affect the market, there is a need to protect clients, potential investors and the market in general. Market manipulation is very serious and affects market integrity. The public has a direct interest in ensuring those involved in financial markets do not use their positions to artificially distort the market and as such there is a ‘heavy onus’ on an applicant for a stay in those circumstances to show that their personal interests outweigh the interests of the public (Batros v ASIC at [23]). ASIC contended that Mr Poidevin has not discharged this heavy onus.

16. Moreover, ASIC submitted that the proposed undertakings are not sufficient to serve the purpose of protecting the public. They are narrow and do not adequately cover the alleged impugned conduct. The first undertaking prohibits communication with a limited set of persons. The second undertaking only requires approval of transactions were Bell Potter Securities is trading as principal. In any event, obtaining such approval would not have prevented the impugned conduct in the current case. The undertakings would leave Mr Poidevin free to trade on his own account and would leave him free to carrying out the type of work at Bell Potter Securities that formed part of the factual matrix of the breach. In summary, ASIC submitted there was little utility in the undertakings and they are without real substance. The offer of additional training adds little because Mr Poidevin had previously submitted to the delegate that he had a high level of compliance education. This education and knowledge did not assist in preventing the breaches and there was therefore no reason to believe that this training regime would prevent further contraventions.

17. ASIC’s function is to protect the public and ensure the fair, orderly and transparent operation of the market. Counsel for ASIC submitted that a stay of the operation of the delegate’s decision would impede this function because it would not adequately protect the public or the market, particularly when the Tribunal could not be satisfied that the undertakings would adequately serve this purpose. It was further submitted that ASIC has a statutory duty to publish Mr Poidevin’s name in the Gazette and to enter it into the Register as provided by s 922A of the Corporations Act and rr 9.1.01(n) and 9.1.02(o) of the Regulations. The Tribunal would have no authority to restrict the publication of these matters unless a stay of the delegate’s decision is granted. ASIC relied on Batros v ASIC at [25] and submitted that the Tribunal should follow this decision.

18. ASIC’s submissions are persuasive. I give little weight to the fact that ASIC has not identified any person or entity adversely affected by the trading. It is self-evident that, if market manipulation is established, any person or entity who trades on the basis of an artificial price is disadvantaged. Market manipulation is serious misconduct that has the potential to undermine market integrity. The protection of the public and the market is a significant matter that should be given considerable weight in considering whether a stay should be granted. The critical issue, consistent with the parties’ contentions, is whether the private interests of Mr Poidevin outweigh the public interest in the circumstances of this case and whether there are any other factors which may ameliorate any risk.

19. While there is a risk the undertaking proffered may not prevent conduct of the kind found by the delegate to be established, I accept the evidence of Mr Poidevin that the risk of him undertaking any such impugned conduct pending the substantive review is low. Firstly, the undertaking provides a sound basis for scrutiny of Mr Poidevin’s activities pending the review. Secondly, the duration of any stay is likely to be brief given both parties agreed at the outset of the interlocutory hearing that the substantive review should proceed expeditiously. It is likely the review will be listed for hearing within a few months.

    Conclusions on the stay application

20. After examining the relevant factors and the available evidence, I am of the view that a limited stay should be granted, subject to conditions along the lines of the undertakings offered by Mr Poidevin in his statements. The factual and legal matters which are the subject of the delegate’s findings are complicated and a number of the critical issues are in dispute. Mr Poidevin has some prospects of success and I accept that there would be hardship to Mr Poidevin if a stay is not granted pending determination of the substantive review.

21. Provided the duration of the stay is brief, subject to conditions and potential clients, investors and the market are adequately informed of the existence of the orders and the alleged impugned conduct through the Government Gazette and ASICs Register, I am satisfied that a stay of the banning orders pending the review would be appropriate and desirable. I have also had regard to the fact that the substantive review is likely to be finalised within months. If there is any delay by the parties or change in these circumstances, the question of the continuation of the stay can be reviewed.

22. For the reasons already outlined, I am not satisfied there should be a stay of the publication of the terms of the banning orders. I would however expect that the fact of the proceedings and that the order has been stayed pending the outcome would be recorded in both the Gazette and the Register.

    CONFIDENTIALITY ORDERS

23. Counsel for Mr Poidevin contends he will suffer irreversible damage to his reputation if non-publication and confidentiality orders are not made. Even if he is successful, his reputation will not be able to be restored. He also submits that the charitable causes he supports, such as White Ribbon Walk, the Hearts in Rugby Union Foundation and his affiliation with the University of New South Wales, will be adversely affected by the publicity. The non-publication and confidentiality orders are justified in the circumstances because of the serious harm that both Mr Poidevin and the charities he is associated with would suffer, which would be ‘in excess of the ordinary damage faced by persons in his position’. Mr Poidevin will be likely to face permanent commercial and personal damage by virtue of the publication of the decision and this is a ‘cogent reason’, as contemplated by ASIC v AAT, to make confidentiality and non-publication orders.

24. Counsel submitted that the public interest in transparency of the proceedings should not be conflated with transparency in the market and this application is not a case of avoiding a banning order. It is not alien to the scheme in the Corporations Act that the process leading to the making of the banning order is confidential (s 920A(2)(a) of the Corporations Act and s 22 of the ASIC Act). Relevantly, the orders proposed are limited in nature and will have ‘minimal impact’ on the transparency of the Tribunal proceedings. The orders sought are limited because they are only sought for the duration of the proceedings and, thereafter, only if Mr Poidevin succeeds. The privacy of the proceedings will only extend until they are concluded and it was submitted:

    [T]he public is limited only in its ability to participate and observe the proceedings as they occur, not in its ability to see whether substantive justice has been performed by the Tribunal.

25. In his written submissions, Counsel for Mr Poidevin contended that the Tribunal should consider whether the public interest in the administration of criminal justice outweighs the public interest in making all relevant information available to the public. Section 1041A of the Corporations Act is a criminal offence. ASIC contended that the Tribunal should not impose a confidentiality order on the theoretical basis of potential future criminal proceedings. At the interlocutory hearing Mr Poidevin’s representatives did not press this submission but it is included for completeness.

26. ASIC submitted that open justice is a paramount consideration. Contrary to the submissions of Mr Poidevin, the orders sought are not of a limited nature. Public transparency will not be served by confidentiality orders and the fact that ASIC did not identify harm, and therefore immediate risk, to clients and members of the public, should be given little weight. If the fact of the banning order is not disclosed, Mr Poidevin’s clients, colleagues, potential investors and others involved in the financial services industry will not be fully informed. ASIC also contends that keeping the banning order and these proceedings secret from the charities and those who support them is neither desirable nor appropriate. The charities, like the market, should be fully informed about the existence of the banning orders and the proceedings.

27. I accept that the media interest in this case is likely to be significant. The review involves allegations of market manipulation by a senior executive of one of the largest stockbroking firms in Australia. This is likely to attract attention, particularly in the financial services sector and with the media that regularly reports on these matters. There can be little doubt that Mr Poidevin’s involvement will generate broader interest. Whether this interest will be disproportionately negative is difficult to say, but it is possible.

1. Nonetheless, there is considerable force in ASIC’s contentions. While it can be accepted that Mr Poidevin may be exposed to media coverage over and above what would be expected for other market participants, transparency in Tribunal processes and proceedings should be the norm. This is not a case where Mr Poidevin has identified confidential information that should not be disclosed, as contemplated in s 35(5) of the AAT Act. As observed by Deputy President Forgie in Bolton v Australian Securities and Investments Commission [2015] AATA 977 at [92]:

   ….A disqualification order is a serious step for ASIC to take. It is important that the review of ASIC’s decision to make that disqualification order be open to public scrutiny. The public needs to be able to satisfy itself that the proper steps are followed and the proper considerations taken into account by the Tribunal in performing its role in the regulatory framework established by the corporations law. It also needs to know that ASIC is exercising its powers and carrying out its duties under that law in a manner consistent with the objects of the Corporations Act. The proceedings in the Tribunal provide an opportunity for scrutiny of that sort.

2. The submission that there will be ‘minimal impact’ on transparency because of the proposed limited nature of the orders sought should not be accepted. Firstly, under the orders sought the public would not be able to participate and observe the proceedings as they occur, unlike other Tribunal proceedings. This is regardless of the outcome. Secondly, the orders only contemplate transparency, albeit somewhat delayed, if Mr Poidevin does not succeed. If he succeeds and the order is set aside, the public scrutiny of the Tribunal processes and procedures referred to by Deputy President Forgie and as contemplated by the Full Court in ASIC v AAT would be compromised.

3. A person in Mr Poidevin’s position is likely to be subject to greater public scrutiny and while one can be sympathetic to this, this does not, of itself, warrant confidentiality and non-publication orders. As already noted, Mr Poidevin’s good reputation may be an advantage and it cannot be assumed that the publicity of the orders and the proceedings will have an immediate and lasting effect. Public scrutiny and transparency of Tribunal proceedings are important considerations, not only in relation to public confidence and perceptions about the integrity of administrative review more generally but, relevant to this case, the role of ASIC as a regulator and Mr Poidevin as a market participant. Regardless of whether Mr Poidevin succeeds, there is a public interest in ASIC’s investigation and decision-making process being scrutinised. For instance, if ASIC’s decision making or investigation was flawed it will be important to expose this, in which case Mr Poidevin would be vindicated. If not, this will also be important to expose in a timely manner.

4. There is no evidence that the charities referred to by Mr Poidevin in his statement are so heavily reliant on his support and reputation that they would no longer be viable. Nor is there evidence that the charities would be unable to approach other prominent Australians who could continue with Mr Poidevin’s work. These charities, and those who support them, should be given the opportunity to make a fully informed decision about Mr Poidevin’s role or their support for the charities.

5. Implicit in Mr Poidevin’s submissions is concern that media reporting of Mr Poidevin’s case will not be balanced. However, administrative review which is open to public scrutiny should facilitate accurate reporting. There are remedies available for false or misleading reporting in any event.

   CONCLUSION

6. For the above reasons I have decided to grant a conditional stay of the banning order; decline to grant a stay of the implementation of the banning order in relation to its publication and decline to make the confidentiality orders sought under s 35 of the AAT Act.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Redfern.

.............................[sgd]...........................................

Associate

Dated: 25 January 2018

Date of hearing:	19 December 2017
Counsel for the Applicant:	Mr G Kennett SC & Ms P Abdiel
Solicitors for the Applicant:	Clayton Utz Lawyers
Counsel for the Respondent:	Mr N O’Bryan SC & Mr P Bender
Solicitors for the Respondent:	Australian Securities & Investments Commission