Trading Life Services Pty Ltd and Australian Securities and Investments Commission

Trading Life Services Pty Ltd and Mr Yakob (the applicants) sought orders from the Administrative Appeals Tribunal (AAT) to prevent the Australian Securities and Investments Commission (ASIC) from publicising a decision to ban Mr Yakob from providing financial services. The applicants also sought orders for a private hearing and non-disclosure of information under section 35 of the *Administrative Appeals Tribunal Act 1975* (Cth) and interim stay orders under section 41(2) of the *Administrative Appeals Tribunal Act 1975* (Cth).

The AAT was required to determine whether to grant interim stay orders under section 41(2) and whether to make orders for a private hearing and non-disclosure of information under section 35. The court considered the principles governing the exercise of discretion for both types of orders, noting that while distinct, some informing principles were shared. The court also had to balance the applicants' desire for confidentiality against the public interest in open justice and the regulator's role.

Deputy President McCabe P found that while the discretion to make orders under section 41(2) was engaged, the balancing exercise weighed against granting them. Although Mr Yakob no longer provided financial services, thus posing no immediate market risk, making a section 41(2) order without corresponding section 35 orders could embarrass ASIC in its regulatory role if news of the banning decision leaked. Regarding section 35, the court emphasised that powers for private hearings and non-disclosure are exceptional, with a strong presumption in favour of public hearings and access to evidence. The court noted that a quick final hearing was possible, which weighed in favour of exercising discretion, but ultimately concluded that the overall balancing exercise did not support the making of the requested orders.

The application for orders under sections 35 and 41(2) was refused. However, the AAT did not make interim orders because ASIC provided an undertaking not to publicise or formally record the banning decision pending the outcome of the interlocutory application. ASIC agreed to wait 14 days after the publication of the reasons to the parties before taking action regarding publication, allowing the applicants time to consider their position. The AAT also indicated it would not publish its reasons more widely until after this 14-day period had expired.