Spooner and Australian Securities and Investments Commission - [2025] ARTA 2218

Spooner and Australian Securities and Investments Commission [2025] ARTA 2218 (20 October 2025)
Applicant:Wade Spooner
Respondent:  Australian Securities and Investments Commission
Tribunal Number:                2025/4428
Tribunal:Deputy President P Britten-Jones
Place:Melbourne
Date:20 October 2025

Decision:The Tribunal refuses the application for a stay under s 32(2) and refuses the applications for confidentiality orders under ss 69(3) and 70 of the Administrative Review Tribunal Act 2024 (Cth).

...............................[SGD]...............................
Deputy President P Britten-Jones
Catchwords
INTERLOCUTORY APPLICATION – application for stay of a decision – application for confidentiality orders – banning order under Corporations Act 2001 (Cth) – consideration of prospects of success – consequences on the parties – mental health concerns – significant public interest – whether there is a cogent reason to depart from an open hearing – applications refused
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Corporations Act 2001 (Cth)
Cases
Australian Securities & Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130
Caratti and Australian Securities and Investments Commission [2024] ARTA 103
Daly and Australian Securities and Investments Commission [2020] AATA 1516
Re Scott and Australian Securities and Investments Commission [2009] AATA 798
Statement of Reasons

The Applicant is seeking a stay under s 32(2) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) and confidentiality orders under s 69(3) and s 70 of the ART Act.
Stay Application
The Applicant applies for a stay of the Respondent’s (ASIC) decision of 17 July 2025, made pursuant to ss 920A and 920B of the Corporations Act 2001 (Cth) (Corporations Act), to prohibit him from providing any financial services, controlling an entity that carries on a financial services business, or performing any function involved in carrying on of a financial services business, for a period of eight years.
The Applicant has filed with the Tribunal an application for review of that decision. The Tribunal has offered the parties an expedited hearing of that review which on current estimates could take place early next year.
The Tribunal has power to make an order staying or otherwise affecting the operation or implementation of the decision for the purpose of ensuring the effectiveness of the review. The Tribunal has a discretion to grant a stay if it considers that it is desirable to do so after taking into account the interests of any person who may be affected by the review of the decision.
Section 32(1) of the ART Act makes it clear that making an application for review does not itself provide a ground for support of a stay. Pursuant to s 32(2) I must be of the opinion that it is desirable to grant a stay. Before reaching this opinion, s 32(7)(b) states I must take into account the interests of any persons affected by the review. Those interests are to be identified by reference to the statutory scheme under which the decision under review was made.[1] In this case, the Respondent made a banning order because it was concerned that various scenarios described in s 920A(1) might apply to the Applicant.
[1] Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130, 142-3 [50]–[51] (‘Australian Securities and Investments Commission v Administrative Appeals Tribunal’).
The relevant statutory scheme was considered by the Full Court of the Federal Court in Australian Securities and Investments Commission v Administrative Appeals Tribunal:[2]
[2] Ibid 136-8 [21]-[33].
21 Under s 920A(1) of the Corporations Act ASIC may make a banning order by giving written notice to a person in certain circumstances. However, by s 920A(2) ASIC may only make a banning order after giving the person an opportunity to be heard (in private) and make submissions other than in the two circumstances specified in s 920A(3) (where immediate cancellation or suspension of a financial services licence is authorised pursuant to s 915B or in case of a conviction for serious fraud).
22 Section 920B(1) specifies that a banning order is:
... a written order that prohibits a person from providing any financial services or specified financial services in specified circumstances or capacities.
23 Section 920B(2) provides:
(2) The order may prohibit the person against whom it is made from providing a financial service:
(a) permanently; or
(b) for a specified period, unless ASIC has reason to believe that the person is not of good fame or character.
24 Under s 920C(1) a person against whom a banning order is made cannot be granted an Australian financial services licence contrary to the banning order. By s 920C(2):
(2) A person contravenes this subsection if:
(a) the person engages in conduct; and
(b) the conduct breaches a banning order that has been made against the person.
Such a contravention is an offence under s 1311(1).
25 Section 920D(1) provides that ASIC may cancel or vary a banning order by giving written notice to the person against whom the order was made if "ASIC is satisfied that it is appropriate to do so because of a change in any of the circumstances based on which ASIC made the order".
26 Under s 920E(1) a banning order "takes effect when it is given to the person against whom the order is or was made".
27 Section 920E(2) is in the following terms:
(2) ASIC must publish a notice in the Gazette as soon as practicable after making, varying or cancelling a banning order. The notice must state when the action took effect and:
(a) in the case of the making of a banning order - set out a copy of the banning order; or
(b) in the case of the variation of a banning order - set out a copy of the banning order as varied.
28 Under s 920F(1) a banning order must be accompanied by a statement of reasons for the order.
29 Section 922A(1) requires ASIC to establish and maintain registers relating to financial services. Section 922A(2) provides for the Corporations Regulations to prescribe the way in which the registers are to be established and maintained including the details that ASIC must enter in respect of persons against whom a banning order is made. Regulation 7.6.06(1) is as follows:
(1) For subsection 922A(2) of the Act, ASIC must include the following details for each person against whom a banning order is made in the register of persons against whom a banning order under Division 8 of Part 7.6 of the Act is made:
(a) the person's name;
(b) the day on which the banning order took effect;
(c) whether the banning order is permanent or for a fixed period;
(d) if the banning order is for a fixed period - the period;
(e) the terms of the banning order;
(f) whether the banning order has been varied or cancelled;
(g) if the banning order has been varied:
(i) the date of the variation; and
(ii) the terms of the variation;
(h) if the banning order has been cancelled - the date of the cancellation;
(i) any other information that ASIC believes should be included in the register.
30 Section 1317B(1) of the Corporations Act provides for the AAT to review decisions by ASIC (amongst others) in these terms:
(1) Subject to this Part, applications may be made to the Tribunal for review of a decision made under this Act by:
(a) the Minister; or
(b) ASIC; or
(c) the Companies Auditors and Liquidators Disciplinary Board.
31 The reference to "the Tribunal" in s 1317B(1) is a reference to the AAT (s 9).
32 By s 1317A "decision" has the same meaning as in the AAT Act (see [34] below).
33 A decision to make a banning order is thus reviewable by the AAT. By s 1317D(2) ASIC is thus required to:
...take such steps as are reasonable in the circumstances to give to each person whose interests are affected by the decision notice, in writing or otherwise:
(a) of the making of the decision; and
(b) of the person's right to have the decision reviewed by the Tribunal.
The statutory scheme provided that before making a banning order, the Respondent was required to give notice of its concerns and afford an opportunity for the Applicant to be heard. The Respondent provided the Applicant with a written notice dated 28 February 2025,[3] and the Applicant availed himself of the opportunity to be heard by attending a hearing before the Respondent on 24 April 2025 and by providing written statements with supporting evidence and submissions.[4] The delegate of the Respondent provided a decision and reasons on 17 July 2025.
[3] T-Documents T3, 226-8.
[4] Ibid T2, 29.
ASIC’s concerns related to the Applicant’s recommendation and subsequent investment of his clients’ superannuation funds in the Shield Master Fund (the Shield Fund) which was a registered management investment scheme from 24 May 2021. In a period from March 2022 to September 2023, the Applicant recommended the vast majority of his clients to rollover most of their superannuation funds into the High Growth class of the Shield Fund.
In the reasons for decision, the delegate of ASIC found that the Applicant had breached numerous provisions of the Corporations Act. The delegate relied upon documentary evidence including:
(a)the product disclosure statements for the Shield Fund high growth class investment which showed that it was a high-risk investment, that it was not a standalone investment and that it was exposed to potential conflicts of interests.
(b)The statement of advice provided to some clients which contained a graph and table which represented that the Shield Fund had been operating since 2016.
The delegate found that there was no basis for recommending that a significant proportion of a person’s superannuation fund should be invested in the Shield Fund.
The delegate found that 11 statements of advice contained material that was false or misleading by representing that, in substance:[5]
(a)The Shield Fund had generated returns since 2016;
(b)The Shield Fund had outperformed alternatives since 2016; and
(c)The Shield Fund had a higher performance track record than alternatives.
[5] Ibid 75.
The delegate determined that ASIC should exercise its powers under s 920A(1) of the Corporations Act in order to protect investors, promote confident and informed decision-making by consumers of financial products and services, cause the Applicant to reflect on his conduct and deter like conduct.[6]
[6] Ibid 102.
The Applicant has provided a significant amount of evidence to the Tribunal since making his application for a stay. He relies on two further affidavits in his own name together with the witness statements previously provided to ASIC. His fiancée and lawyer have also provided affidavits. Comprehensive written submissions have been provided. ASIC has lodged T-documents and supplementary T-documents together with more recent materials.
There is no real dispute about the relevant legal principles as to whether a stay should be granted under s 32(2) of the ART Act. The non-exhaustive set of factors to be taken into account are the prospects of success, the consequence for the Applicant of the refusal of a stay, the public interest, the consequences for the Respondent, whether the review would be rendered nugatory, the length of time that the ban has already been in place and the gap between hearing the stay and the expected date for a hearing of the review application.[7]
[7] Re Scott and Australian Securities and Investments Commission [2009] AATA 798 at [4] (‘Re Scott’).
The decision of the Full Court of the Federal Court in Australian Securities and Investments Commission v Administrative Appeals Tribunal provides guidance as to whether a stay should be granted. The Full Court observed that the power to make a stay is conditional on forming an opinion that it is desirable to make the order and that the Tribunal may only form this opinion after taking into account "the interests of any persons who may be affected by the review".[8] The Full Court said further:[9]
51 The nature of the decision under review will affect the identification of the "interests of any persons who may be affected by the review". Accordingly, those interests are to be identified by reference to the statutory scheme under which the decision under review was made. In the case of a banning order the provisions are those which ASIC identified in the Corporations Act and Corporations Regulations (and which are referred to above). … Given the nature of a banning order, the persons who may be affected by a review of its making include not only the recipient and his or her dependants, associates and employees but also that person’s existing and potential clients, as well as the public at large.
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.
54 Moreover, information is the key to effective trading in any market. It takes the place of regulation in ensuring fairness. A market which is not fully informed is not operating properly. Is not an investor who is about to deposit funds with a person providing financial services entitled to know that a banning order has been made against the person? If the order has been stayed on substantial grounds the person is also entitled to know that. The informed investor may continue with the proposal. If the investor does not, then that is just an example of the operation of the market place. The critical matter is that the market is fully informed. If the banning order is not disclosed, but subsequently upheld, is not the investor entitled to complain that all the circumstances should have been made public?
[8] Australian Securities and Investments Commission v Administrative Appeals Tribunal (n 1) 142 [49] – [50].
[9] Ibid 143-4.
In the context of those matters raised by the Full Court in Australian Securities and Investments Commission v Administrative Appeals Tribunal I turn now to consider the factors set out in Re Scott.
Prospects of Success
I accept the Applicant’s expression of the threshold test as being whether there is a realistic possibility that a different decision could be made at the final hearing.
The Applicant denies any contraventions of the Corporations Act and says that the length of the banning order is not justified. The Applicant seeks a stay of the banning order, but in the alternative, would be prepared to accept some conditions which would allow him to continue to work in the financial services industry on a supervised and restricted basis. The Applicant says that the current terms of the banning order are extremely broad and go beyond protection of the public because they prevent the Applicant from doing even the most menial tasks within the financial planning industry.
This is not a simple case. There is contested evidence and a dispute about how the legislation should be interpreted and applied. The relevant conduct of the Applicant took place over a period of about 18 months from March 2022 to September 2023. The Applicant submits that the reason for the failure of the Shield Fund was governance failures and potential fraud by the fund’s operators.[10] Obviously, I am not in a position to resolve that issue. There is a significant amount of documentary and affidavit evidence. The submissions made to the Tribunal on the stay application indicate that much of the evidence is contested or at least needs to be considered in a wider context.
[10] Stay Application and Confidentiality Application Written Submissions on behalf of the Applicant dated 28 August 2025, 4 [6] (‘Applicant’s Submissions’).
Counsel for both parties urged me to find that the other party has poor prospects of success. One specific issue relates to a graph and table in the statements of advice. ASIC emphasised the misleading nature of the graph and table in the statements of advice which on their own suggest that the Shield Fund had been operating since 2016, which would be false because it only became registered in 2021.[11] In response, the Applicant points to other evidence which indicates that clients were or would have been aware that the Shield Fund was new and that any reference to a track record was a reference to the past performance of the assets in the new fund.
[11] Respondent’s Outline of Submissions Interlocutory Application for Stay and Confidentiality Orders, 20-1 [69] (‘Respondent’s Submissions’).
Another contested issue is whether the Applicant’s conduct was sufficient to meet the “safe harbour” requirements in s 961B(2). The Applicant contends that he engaged in a high level of diligence before advising his clients to invest in the Shield Fund. The Respondent says that the fact that the Applicant recommended to the vast majority of his clients to invest in the Shield Fund suggests that he was not providing advice that was appropriate to each of his clients.[12]
[12] Applicant’s Submissions (n 10) 30-6.
There is also a dispute as to whether it was reasonable for the Applicant to rely upon “gatekeepers” when giving advice. The Applicant contends that this reliance was reasonable and that the gatekeepers failed to anticipate or detect problems with the Shield Fund.[13] The Respondent contends that a financial planner cannot outsource their obligations or blame others for their own failures to provide appropriate advice.[14]
[13] Ibid 14 [48].
[14] Respondent’s Submissions (n 11) 18 [60].
There is also a dispute in relation to conflicts of interest relating to Mr Chiodo.
On the material before me, it is apparent that the Applicant has put forward evidence and arguments with respect to the contested issues above. Some of the arguments depend upon factual findings that the Tribunal will need to make at the hearing. Others depend upon statutory interpretation which will be the subject of submissions. It is not appropriate to conduct a mini trial for the purpose of determining the Applicant’s prospects of success. I conclude that the Applicant has at least an arguable case of overturning the banning order. It cannot be said that his case is hopeless or unlikely to succeed. It follows that the Applicant has established a realistic possibility of a different decision being made on the review application.
On the other hand, I note that, pursuant to the statutory scheme, ASIC has comprehensively investigated the affairs of the Applicant and taken into account his responses before reaching its conclusion of statutory breaches in support of the banning orders.

Given my finding as to prospects of success on liability, there is less relevance in considering whether there is a realistic possibility of a reduction in the length of the ban. The Applicant claims that the banning order of eight years is excessive and points to numerous decisions of the Tribunal which have reduced the length of bans imposed by ASIC. However, even a likely prospect of a very significant reduction (by half or three quarters) would not impact on whether to grant a stay given that the Tribunal has offered an expedited hearing so that a decision can be expected well within 12 months from the date of the banning order.
I would conclude that the Applicant has got over the threshold test for prospects of success but, in terms of deciding whether to grant a stay, I would not give this factor significant weight because it seems that both parties have presented arguable cases and it is difficult at this stage to evaluate the merits of the substantive review application bbbbbb.
The Consequences for the Applicant and the Respondent and the public interest
Hardship to the Applicant and associated persons, such as his fiancée, is a significant factor in terms of whether to grant a stay but it must be weighed against the public interest.
In his affidavit of 27 August 2025, the Applicant deposes to the effect that:
(a)he has been unemployed since service on him of the banning order on 23 July 2025;[15]
(b)as an employee of MWL Financial Services Pty Ltd (MWL) up until the effective date of the banning order, he had approximately 125 active clients who have been negatively affected by the banning order;[16]
(c)since graduating from university, he has been continuously employed as a financial planner and all his qualifications and experience are entirely within the financial services industry making it difficult to obtain employment outside of that industry;[17]
(d)he is the main breadwinner for his family which includes his fiancée and his 22-month-old child;[18]
(e)he will suffer lasting harm to his reputation if the banning order is not stayed and he will become unemployable in the financial services industry;[19]
(f)his family is dependent on his income without which there will be a significant deficit every year;
(g)their plans to have a second child have been put on hold, so too their wedding and the purchase of a house;[20]
(h)he and his fiancée both have diagnosed mental health conditions which require treatment, and which have deteriorated since the banning order;[21]
(i)he is fully committed to doing whatever it takes to preserve his career including entering into a formal mentoring agreement and he would accept a partial or conditional stay to allow him to continue working in the financial services industry.[22]
[15] Affidavit of Wade Lance Spooner dated 27 August 2025, 2 [7].
[16] Ibid [8].
[17] Ibid 4 [13].
[18] Ibid 5 [17].
[19] Ibid [23].
[20] Ibid [40]-[43], [44].
[21] Ibid [47].
[22] Ibid 9 [53].
In his affidavit of 23 September 2025, the Applicant deposes to the effect that:
(a)since his employment ended on 23 July 2025, he has applied for over 100 advertised positions and has had two interviews;[23]
(b)as MWL has had its Australian financial services licence (AFSL) revoked, he is unable to return to his previous role even if the banning order is fully or partially stayed but if the decision revoking the MWL licence was set aside or stayed then he would be able to continue with MWL either in a client facing or non-client facing role should his banning order be stayed or partially stayed.[24]
[23] Supplementary Affidavit of Wade Lance Spooner dated 23 September 2025, 6 [31].
[24] Ibid [32].
The Applicant’s fiancée deposed in her affidavit of 27 August 2025 to the effect that:
(a)the Applicant was dedicated to his career and helping people with their financial stress;[25]
(b)the Applicant’s mental health has been severely impacted which has also affected her mental health with additional stress.[26]
[25] Affidavit of Applicant’s fiancée dated 27 August 2025, 1 [3].
[26] Ibid 2 [7]-[9].
The Applicant’s fiancée also disclosed some other personal consequences which I accept but will not repeat here.
I accept the affidavit evidence of the Applicant and his fiancée and the Applicant’s written[27] and oral submissions that the consequences for him and his family of a stay refusal would be very significant. These consequences are made worse because of the precarious financial position of the Applicant’s family and the diagnosed mental health conditions of both the Applicant and his fiancée. I have taken these factors into account, including the medical evidence, without disclosing details in the reasons. However, the damage to the Applicant of a medical, financial or reputational nature would not be irreparable and he would not become unemployable in the financial services industry.
[27] Applicant’s Submissions (n 10) at [189] to [239].
With respect to the interests of the Applicant’s clients at MWL, that is no longer a significant factor because MWL’s licence has been cancelled. As things stand, the Applicant cannot return to MWL and service those clients irrespective of the banning order.
The Full Court in Australian Securities and Investments Commission v Administrative Appeals Tribunal[28] emphasised the context set by the Corporations Act and the importance of the availability of information to the market generally and to existing and potential customers, as a critical element in the public interest. The Full Court noted that the impact on persons associated with the Applicant, including his dependents is “unfortunate” but is “of lesser significance” than the matters emphasised.[29] In terms of weighing up the respective interests, the Full Court concluded:
[71] … careful consideration … must be given by the AAT in any exercise of power under s 41(2) of the AAT Act to the balance of competing rights and interests struck by Parliament as embodied in the terms of the Corporations Act, particularly the balance between the rights and interests of the recipient of the banning order and of the public including existing and potential future clients of the recipient of the banning order. As we have said the scheme which the provisions of the Corporations Act embody – with the potential making of a banning order to remain private unless and until ASIC decides to make such an order after having given the recipient an opportunity to be heard – is not mere statutory background or a neutral factor in the process of the formation of the required opinion about what is desirable under s 41(2) of the AAT Act. The scheme which Parliament has established in the Corporations Act, and the public interest in the right of the market to know relevant information as soon as practicable, must be treated as a fundamental element in the decision-making process required under s 41(2) of the AAT Act.
[28] Australian Securities and Investments Commission v Administrative Appeals Tribunal (n 1) 144 [56]- [57].
[29] Ibid [57].
The banning order in this case protects the public against misconduct by the Applicant. ASIC, as the supervising regulator, “has made an adverse decision and all other things equal, the public is entitled to the protection of such a decision.”[30] The granting of a stay has a negative consequence on ASIC because it impedes the carrying out of its statutory functions.[31]
[30] Re Scott (n 7) [10].
[31] See Caratti and Australian Securities and Investments Commission [2024] ARTA 103 at [60].
The banning order also serves as a general deterrent to others who might be tempted to breach their duties. There is a public interest in ASIC decisions being announced and implemented promptly as general deterrence may be less effective if that does not occur. The general deterrence factor weighs heavily in favour of not granting a stay.
Having considered and weighed up all the abovementioned factors, it is my view that the impact of the stay on the Applicant and those associated with him is of lesser significance than the public interest in the banning order being implemented. In reaching this view, I have taken into account that the full Federal Court has said that 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”.[32] It is also noteworthy that the Applicant has already been named in the Australian Financial Review (AFR)[33] as an MWL financial adviser involved in the Shield scandal and therefore he has already been subjected to negative publicity in the national press. A stay order will not change that.
Will the review application be rendered nugatory and relevance of when the banning order was made and the length of time to the hearing
[32] Australian Securities and Investments Commission v Administrative Appeals Tribunal (n 1) 148-9 [76].
[33] Supplementary T-Documents, article by Andrew Hobbs dated 5 September 2025 at ST7.20, 3207-20.
I find that it is likely that the Applicant will be able to return to his role as a financial planner if he is successful on the substantive review application. I disagree with the Applicant’s contention that he would have no realistic prospect of career reconstruction. The Applicant’s mental health condition exacerbates the impact on him of the banning order and a stay would no doubt be beneficial to his mental health (and his fiancée’s). But even without a stay, I consider that the Applicant will be able to conduct the review application and, if he is ultimately successful and overturns the banning order, then there will be a corresponding improvement in his mental health and his reputation will recover over time. His significant experience would assist him in his return to the industry.
The Applicant ceased his practice as a financial planner on 23 July 2025 and has therefore already been outside of the industry for over two months. I have offered the parties an expedited hearing which can take place early in the new year. An expedited hearing reduces the financial impact of not granting a stay. The impact on his finances and his mental health are not so great as to cause the Applicant to withdraw his application for review. If the Applicant is successful he will have been prevented by the banning order from practising for a period of seven months if the Tribunal delivers a decision by 23 February 2026, which is likely on current expectations. Even if he were outside of the industry for a longer period of up to 12 months, I consider that his career would likely recover and the damage to him would not be irreparable. It is noteworthy that MWL is no longer trading and consequently the Applicant’s work has been disrupted, meaning he would have had to find alternative employment regardless of the banning order. A stay of the banning order will not give the Applicant back his job at MWL and nor will it fully reverse the reputational damage caused by him being named in the AFR.
I conclude that the review application will not be rendered nugatory if a stay is not granted. This is a significant factor which weighs against the granting of a stay because the Applicant has not shown that a stay is necessary to secure the effectiveness of the hearing.
Conclusion on the stay application
I consider that there is a significant public interest in the implementation of the banning order which outweighs the consequences for the Applicant. The review will not be rendered nugatory or pointless if a stay is not granted. The consequences for the Applicant and his family are very unfortunate, but the hearing can still proceed and the impact on the Applicant is lessened by the Tribunal offering an expedited hearing. Even if a stay were granted, the Applicant will have suffered some reputational damage by being named in the AFR in association with the Shield Fund collapse, he will still have lost his job and not be able to continue to service his clients at MWL because its licence has been cancelled. The Applicant has been unemployed since 23 July 2025 and now that MWL’s licence has been cancelled he will not be able to return there even if a stay were granted. In these circumstances, a review held in the new year will remain effective so that there is no need to grant a stay for the purpose of ensuring the effectiveness of the review.
The Applicant has proposed a less restrictive stay that allows the Applicant to work in the financial planning industry but under supervision and with certain conditions. It is by no means clear how much benefit this would be to the Applicant because he will still need to find another job. I consider that allowing him to work in the industry would significantly reduce the public interest factor of imposing a more absolute ban. The deterrent factor on others would be less and it would have negative consequences on ASIC who, having imposed an absolute ban, may be seen as not carrying out its statutory duties if the banning order is not implemented. This is particularly so in circumstances of the intensive media attention which has exposed details of the collapse of the Shield Fund and named the Applicant as having been involved. I refer to the media attention in further detail (which I adopt here) when considering confidentiality orders. In my view, when considered with all the other factors relevant to granting a stay, imposing a less restrictive stay does not achieve the purpose of ensuring the effectiveness of the review.
The application for confidentiality orders
The Applicant has requested an order under s 69(3) of the ART Act that all interlocutory hearings (including this one) and the final hearing take place in private together with orders under s 70 restricting the publication or disclosure of all information relating to the proceedings.
Section 71 provides that in making orders under ss 69(3) or 70 the Tribunal must comply with any relevant practice directions and must have regard to the following:
(a) the principle that it is desirable that hearings of proceedings in the Tribunal are held in public;
(b) the principle that it is desirable that evidence given before the Tribunal is made available to the public;
(c) the principle that it is desirable that evidence given before the Tribunal and the contents of documents given to the Tribunal are made available to all the parties to the proceeding;
(d) any reasons in favour of making an order, including the following:
(i) in any case—the circumstances of the parties to the proceeding and other persons connected to the proceeding;
(ii) in any case—the harm (if any) that is likely to occur to a person if the order is not made;
(iii) in relation to an order under section 70—the confidential nature (if any) of the information;
(e) any other matters that the Tribunal considers relevant.
The norm is that proceedings before the Administrative Review Tribunal shall be in public. A request for a private hearing in relation to a banning order must be considered in the context of the Corporations Act. The Full Federal Court in Australian Securities and Investments Commission v Administrative Appeals Tribunal said:[34]
[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.
[34] Australian Securities and Investments Commission v Administrative Appeals Tribunal (n 1) 148-9 [75] - [76].
With respect to openness and transparency, the Full Federal Court said earlier in the judgement that:[35]
[54] Moreover, information is the key to effective trading in any market. It takes the place of regulation in ensuring fairness. A market which is not fully informed is not operating properly. Is not an investor who is about to deposit funds with a person providing financial services entitled to know that a banning order has been made against the person? If the order has been stayed on substantial grounds the person is also entitled to know that. The informed investor may continue with the proposal. If the investor does not, then that is just an example of the operation of the market place. The critical matter is that the market is fully informed. If the banning order is not disclosed, but subsequently upheld, is not the investor entitled to complain that all the circumstances should have been made public?
[35] Ibid 143-4.
In Daly and Australian Securities and Investments Commission,[36] Deputy President McCabe stated that:
Requests for suppression orders — for that is what they are, in substance — will be scrutinised very carefully where the reviewable decision in question relates to a person’s right to participate in a regulated occupation. Participation in a regulated occupation brings many benefits, including (in many cases) economic advantages that accrue to licence holders. Those economic advantages flow from the establishment of barriers to entry that incidentally reduce competition between the favoured few. The licence necessarily carries with it a requirement that the licensee conform to the rules and participate in regulatory processes according to law. Most of those regulatory regimes — including the one established in Chapter 7 of the Corporations Act 2001 (the Corporations Act) — place a premium on transparency. It follows that a risk of bad publicity accompanying adverse regulatory action will often be regarded as an incident of a licensee’s participation in a regulated occupation.
[36] [2020] AATA 1516 at [18].
The question for the Tribunal is whether there is a cogent reason to depart from the ordinary requirement of an open hearing.
The Applicant contends that there should be a private hearing because of his particular vulnerability due his mental health condition and consequences for his family both financial and otherwise. He is concerned that the disclosure of the banning order will cause reputational damage. He is also concerned about sensitive personal information relating to him and his family being disclosed as part of the hearing.
With respect to the latter issue of sensitive personal information, such as health details, the Tribunal will always take steps to not disclose such information unless absolutely necessary for the cogency of the reasons and I have taken that approach with respect to these reasons. This has particular application to the affidavit evidence of the Applicant’s fiancée whose name or sensitive evidence I see no reason to disclose. I consider it appropriate for evidence of that sensitive nature to not be disclosed to third parties. The Respondent accepted this at a conceptual level, but the parties were unable to agree on terms of orders restricting publication of current and future evidence of this nature.
The hearing of the interlocutory application for a stay and confidentiality orders were held in private and the supporting written evidence has not been disclosed to the public. I consider it is appropriate to maintain confidentiality with respect to this sensitive evidence but at this stage there is no need for an order because no third party sought to attend the interlocutory hearing and no third party has sought access to the evidence relied upon at this hearing or any transcript. The Respondent has indicated that it will not disclose such evidence. If access by a third party is sought, then the parties will be given an opportunity to oppose such access and the Tribunal can revisit the matter.

It is not clear as to whether the Applicant will rely on this sensitive evidence or other further evidence of a similar nature at the hearing of the substantive application. If so, the Tribunal can revisit the issue of confidentiality orders closer to the date of the substantive hearing. I can indicate that the Tribunal is not prepared to substitute a pseudonym for the Applicant’s name but will continue to take the approach of avoiding unnecessary disclosure of sensitive evidence at any further hearings and reasons for decision.
When considering whether to make confidentiality orders, I give very little weight to the damage to the Applicant’s reputation arising from an open hearing or the related submission about the spread of misleading or false information. The Applicant has already been named in the AFR in connection with the collapse of the Shield Fund and therefore his reputation is tarnished with or without confidentiality orders. This public naming of the Applicant together with the constant reporting on the Shield Fund and associated topics makes it important for there to be full disclosure. Otherwise, it would appear to the public that ASIC is taking no action during a very significant financial catastrophe. The public is entitled to know about the banning order as part of this intensive reporting. Further, ASIC should be able to publicise the steps it has taken for general deterrent purposes and so that it can be seen as fulfilling its role as market regulator. Finally, and in any event, the risk of reputational damage is inherent in the nature of a banning order and is an incident of participation in the financial planning industry.
The financial and reputational damage from disclosing the banning order is not irreparable if the Applicant is ultimately successful. Further, an open hearing of the review application in the Tribunal will make public the Applicant’s denial of any alleged statutory breaches and that he is seeking to overturn the banning orders in the Tribunal. If the banning order is set aside, then, as I have found, the Applicant will likely be able to return to the industry having been successful in a hearing heard by the public and, no doubt, reported on by the media.
I am not satisfied that there is a cogent reason for the Applicant to be given a pseudonym or for non-disclosure of the fact of the banning order. The hearing, including interlocutory applications, should proceed in public. One of the purposes of a banning order is to protect the public and therefore the public has a right to know. The sensitive personal information relating to the Applicant and his family affairs, about which the Applicant has expressed concern, cannot justify the far-reaching confidentiality orders sought by the Applicant. Having said that, the Tribunal will, as stated earlier in these reasons, avoid unnecessary disclosure of sensitive information.
Conclusion
I refuse the application for a stay under s 32(2) of the ART Act.
As I said earlier in these reasons, there is no need for confidentiality orders at this stage with respect to the sensitive evidence relied upon by the Applicant on the stay application. It follows that I will not make an order for any private hearings under s 69(3). Further, I will not make an order to restrict publication or disclosure of information about the Applicant and other witnesses under s 70(1) and of any information relating to the proceeding under s 70(2). However, a note will be placed on the Tribunal file that access is not to be granted to a third party without the parties having been heard.
The effect of these orders is to maintain transparency and openness of the regulation of the financial planning industry by ASIC and the Tribunal. In so far as is possible, I have avoided unnecessary disclosure of private and sensitive information in these reasons and the Tribunal will continue to adopt that approach in consultation with the parties in the hearings ahead. If requested to revisit this approach, the Tribunal will hear from the parties.
The Tribunal will facilitate an expeditious hearing of the review application which it expects to proceed early in the new year. The parties will be contacted separately to arrange a directions hearing for the purpose of providing a timetable towards that final hearing.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Deputy President P Britten-Jones.

............................[SGD]...............................
Associate
Dated: 20 October 2025

Date of interlocutory hearing: 25 September 2025

Applicant’s Counsel: Mr Laurence White

Respondent’s Counsel: Mr Philip Bender, Mr Tim Farhall and Mr Gary Zhang

Date of interlocutory hearing:	25 September 2025
Applicant’s Counsel:	Mr Laurence White
Respondent’s Counsel:	Mr Philip Bender, Mr Tim Farhall and Mr Gary Zhang