XQZT v ASIC - [2009] AATA 669

Administrative Appeals Tribunal

INTERLOCUTORY DECISION AND REASONS FOR DECISION

[2009] AATA 669

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/3619

GENERAL ADMINISTRATIVE DIVISION )

ReXQZT

Applicant

AndAustralian Securities and Investments Commission

Respondent

INTERLOCUTORY DECISION (STAY AND SECTION 35 ORDERS)

TribunalMr R P Handley, Deputy President
Date4 September 2009
PlaceSydney
DecisionThe Tribunal makes the following orders and directions:
1.Pursuant to s 41(2) of the Administrative Appeals Tribunal Act1975 (Cth), the Tribunal stays the operation and implementation of the decision under review, including entry of the decision in any register maintained by the respondent, publication of the decision in the Gazette, and disclosure of the decision in any media releases issued by the respondent; and
2.Pursuant to s 35(2) of the Administrative Appeals Tribunal Act1975 (Cth), pending the ultimate determination of the substantive application or any further order of the Tribunal, that:
a)XQZT be described by a pseudonym for the purpose of protecting his identity; and
b)the hearing shall take place in private and that only the parties and their representatives and witnesses, the Tribunal and its staff may be present; and
c)the publication or disclosure of evidence or the contents of documents lodged with or received in evidence by the Tribunal is restricted to the parties and their representatives and witnesses, the Tribunal and its staff and the staff of Auscript.

.....................[sgd].......................
Mr R P Handley
Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – Banning order under s 920A of the Corporations Act - power to stay or otherwise affect the operation or implementation of a decision under review - whether stay necessary to secure effectiveness of hearing and determination of the application for review – prospects of success – prejudice to parties - public interest – whether the review application would be rendered nugatory - confidentiality orders sought – hearings to be in public except in exceptional circumstances – whether it is desirable to make an order by reason of the confidential nature of any evidence or matter or for any other reason - whether desirable to restrict the publication of any material tending to identify the applicant -– whether restriction extends to gazettal notice and press releases

…

RELEVANT ACTS:

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

Corporations Act 2001 (Cth): ss 920A, 1041B

…

CITATIONS

Duncan v Companies Auditors Liquidators Disciplinary Board & Ors (2006) 155 FCR 572; (2006) 61 ACSR 47; (2006) 93 ALD 401; (2006) 44 AAR 253; (2006) 24 ACLC 1621; [2006] FCA 1747

Re PTLZ and ASIC (2008) 100 ALD 648; (2008) 47 AAR 247; [2008] AATA 106

ASIC v PTLZ [2008] FCAFC 164; (2008) 48 AAR 559

Re Cape York Airlines Pty Ltd and Civil Aviation Authority (2004) 80 ALD 364; (2004) 40 AAR 14; [2004] AATA 682

Re Quinlivan and ASIC (2008) 106 ALD 438; [2008] AATA 1094

Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64

Re VBW and Australian Prudential Regulation Authority; sub nom An Applicant and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] AATA 669
Decision Date: 4 September 2009

CaseChat Overview and Summary

XQZT was subject to a banning order issued by the Australian Securities and Investments Commission (ASIC) under section 920A of the Corporations Act 2001, prohibiting the applicant from providing any financial services for a period of four years. XQZT sought review of the banning order by the Administrative Appeals Tribunal (AAT). ASIC opposed the application for review, arguing that it was unlikely to succeed and that there was no need for a stay order. XQZT also sought an order for confidentiality and to restrict publication of any material that might identify the applicant. The AAT had to determine whether a stay order was necessary to secure the effectiveness of the review and whether it was appropriate to make confidentiality orders.

The AAT considered the criteria for staying or affecting the operation or implementation of a decision under review, including the prospects of success of the review application, the potential prejudice to the parties, and the public interest. The AAT noted that the decision to grant a stay was discretionary and depended on the specific circumstances of the case. The AAT also considered the principles regarding confidentiality and public hearings under sections 35 and 41 of the Administrative Appeals Tribunal Act 1975. The AAT found that the prospects of success of the review application were not insignificant, and there was a possibility of prejudice to XQZT if the banning order was not stayed. The AAT also found that the public interest did not weigh heavily against making a stay order. The AAT concluded that a stay order was necessary to secure the effectiveness of the review.

The AAT further considered whether it was desirable to make confidentiality orders and to restrict the publication of any material that might identify XQZT. The AAT noted that the default position was that hearings were to be in public and that evidence and documents were to be made available to the public and to all parties, subject to any reasons for holding a hearing in private or restricting publication. The AAT found that the confidential nature of some evidence and the potential for significant prejudice to XQZT if the identity of the applicant was disclosed outweighed the public interest in open justice. The AAT made orders for confidentiality and to restrict publication of any material that might identify XQZT, including in gazettal notices and press releases.

The AAT made an order staying the operation of the banning order pending the determination of the application for review and made confidentiality orders and orders restricting the publication of any material that might identify XQZT.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Section 41(2) of the AAT Act states:…Operation and implementation of a decision that is subject to review(1)…(2)The Tribunal may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.… Section 35 states relevantly:…(1)Subject to this section, the hearing of a proceeding before the Tribunal shall be in public.…(2)Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order: (a)direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; and(aa)give directions prohibiting or restricting the publication of the names and addresses of witnesses appearing before the Tribunal; and(b)give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; and(c)give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding.(3)In considering:(a)whether the hearing of a proceeding should be held in private; or(b)whether publication, or disclosure to some or all of the parties, of evidence given before the Tribunal, or of a matter contained in a document lodged with the Tribunal or received in evidence by the Tribunal, should be prohibited or restricted; the Tribunal shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted. Thus, the first issue for the Tribunal, pursuant to s 41(2) of the AAT Act, is whether in the Tribunal’s opinion, after taking into account the interests of any persons who may be affected by the review, it is desirable to “make such order or orders staying or otherwise affecting the operation or implementation of the decision” to ban XQZT from providing any financial services for a period of four years “for the purpose of securing the effectiveness of the hearing and determination of the application for review”.