Frugtniet v Australian Securities and Investments Commission [2023] FCAFC 14

Frugtniet v Australian Securities and Investments Commission [2023] FCAFC 14

The Tribunal did not err in applying the NCCP Act as amended because s 2(1) of Sch 14 to the NCCP Transitional Provisions Act broadly permitted an existing banning order to be dealt with as if made under the amended s 80(1), including on AAT review. The Tribunal's knowledge of spent conviction material did not give...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
17 February 2023
Procedural Posture
Appeal Under S 44(1) of the Administrative Appeals Tribunal Act 1975 (cth) From a Tribunal Decision Upholding and Varying an ASIC Banning Order Under the National Consumer Credit Protection Act 2009 (cth) / Full Court Appeal
Outcome
Appeal dismissed.
Legal Topics
['asic Banning Order' 'national Consumer Credit Protection Act 2009 (cth)' 'transitional Provisions' 'spent Convictions' 'apprehended Bias' 'aat Review' 'fit and Proper Person Test' 'use of Findings From Other Proceedings']
['administrative Law' 'statutory Construction' 'consumer Credit Regulation' 'procedural Fairness'] ['asic Banning Order' 'national Consumer Credit Protection Act 2009 (cth)' 'transitional Provisions' 'spent Convictions' 'apprehended Bias' 'aat Review' 'fit and Proper Person Test' 'use of Findings From Other Proceedings']

Source-derived case record

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Procedural Posture

Appeal Under S 44(1) of the Administrative Appeals Tribunal Act 1975 (cth) From a Tribunal Decision Upholding and Varying an ASIC Banning Order Under the National Consumer Credit Protection Act 2009 (cth) / Full Court Appeal

Legal Issues

  1. 1 ['Whether the Tribunal erred by applying the NCCP Act as amended by the Financial Sector Reform (Hayne Royal Commission Response-Stronger Regulators (2019 Measures)) Act 2020 (Cth) rather than the NCCP Act as it stood when ASIC made the banning order.' 'Whether s 2(1) of Sch 14 to the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Cth) authorised an existing banning order to be dealt with as if made under the amended s 80(1).' "Whether the Tribunal's decision was affected by apprehended bias because the Tribunal had knowledge of prejudicial material relating to spent convictions." 'Whether the Tribunal impermissibly took spent convictions into account.' 'Whether the Tribunal denied procedural fairness or erred by relying on findings made in other proceedings.' 'Whether factual findings about dishonesty were not reasonably open or unsupported by probative evidence.']

Ratio Decidendi

The Tribunal did not err in applying the NCCP Act as amended because s 2(1) of Sch 14 to the NCCP Transitional Provisions Act broadly permitted an existing banning order to be dealt with as if made under the amended s 80(1), including on AAT review. The Tribunal's knowledge of spent conviction material did not give rise to apprehended bias in the statutory and procedural context, particularly where the Tribunal recognised the limits imposed by Frugtniet HCA, ruled on the spent conviction material, and did not rely on it in its reasons. The Tribunal was not bound by the rules of evidence, could have regard to findings in other proceedings for the threshold 'reason to believe' inquiry, and...

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal be dismissed.' "The appellant pay the first respondent's costs as agreed or taxed."]