Van Dieren and Australian Securities and Investments Commission

The Administrative Appeals Tribunal (AAT) considered an application by the Applicant for a stay of a decision made by the Australian Securities and Investments Commission (ASIC). The dispute concerned ASIC's decision to issue a banning order against the Applicant, which ASIC had published via a media release. The Applicant sought to stay this publication pending the hearing of their substantive application for review of the banning order.

The primary legal issue before the Tribunal was whether to grant a stay of ASIC's decision to publish the banning order by way of a media release, pursuant to section 41(2) of the *Administrative Appeals Tribunal Act 1975*. In determining this, the Tribunal was required to consider established factors, including the prospects of success of the substantive application, the consequences for the Applicant if the stay were refused, the public interest, the consequences for ASIC in carrying out its functions, and whether the application for review would be rendered nugatory without a stay.

The Tribunal applied the principles outlined in *Scott and Australian Securities and Investments Commission* [2009] AATA 798, which require a balancing of these considerations. While acknowledging that the Applicant had demonstrated some basis for success in the substantive application and that some financial loss and reputational damage were occurring, the Tribunal found these consequences were not sufficient to outweigh the factors against granting a stay. The Tribunal noted that a stay would not significantly reduce the reputational damage, as the primary remedy for that was the overturning of the banning order itself. Furthermore, the refusal of a stay was not considered likely to render the substantive application nugatory, as the Applicant could still seek to have the banning order overturned and resume their career. The Tribunal also noted that the fact of the banning order had already been published on the ASIC Register.

Ultimately, the Tribunal refused the application for a stay of the publication of the media release. However, the Tribunal ordered that the hearing of the substantive application for review be expedited.