Sahai and Australian Securities and Investments Commission

The Administrative Appeals Tribunal (AAT) considered applications by Mr Sahai for a stay of a decision made by the Australian Securities and Investments Commission (ASIC) and for confidentiality orders concerning that decision. ASIC had banned Mr Sahai from engaging in credit activities after finding he was not adequately trained or competent, not a fit and proper person, and likely to contravene credit legislation in the future. These findings arose from ASIC's belief that Mr Sahai had allowed his brother, who was permanently banned from credit activities, to operate out of Mr Sahai's business.

The legal issues before the Tribunal were whether it was desirable to grant a stay of ASIC's decision under section 41(2) of the *Administrative Appeals Tribunal Act 1975* (Cth) and whether it was appropriate to make confidentiality orders under section 35 of the same Act. The Tribunal was required to consider the presumption of openness and transparency in proceedings and whether the applicant had established sufficient grounds to displace this presumption and warrant the extraordinary measures of a stay or confidentiality.

Deputy President McCabe P reasoned that a stay order is typically granted to ensure the efficacy of the review process and prevent the hearing from being rendered nugatory. Similarly, confidentiality orders require a strong justification to override the principle of open justice. The Tribunal found that Mr Sahai's claims of reputational damage and financial hardship, while acknowledged, were not sufficient in themselves to justify a stay or confidentiality orders. The applicant also disputed the delegate's findings, particularly regarding his knowledge of his brother's contraventions and the extent of his own involvement, and argued there was no risk to clients. However, the Tribunal was not satisfied that the grounds for making the requested orders had been made out.

Consequently, the Tribunal dismissed Mr Sahai's applications for a stay and confidentiality orders.