Panganiban v Australian Securities and Investments Commission [2016] FCA 510
Friday 3 June 2016 @ 11.05 a.m. | Corporate & Regulatory
A New South Wales financial planner’s attempt to restrain the Australian Securities and Investment Commission from a decision for a possible banning order against him has been dismissed in the Federal Court. In Panganiban v Australian Securities and Investments Commission [2016] FCA 510, Justice Bromwich ordered that prior to making a decision to banning a candidate, it is the prerogative of ASIC to determine the matters and material which it proposes to rely on.
Background to the Case
A Notice of Hearing was issued to Mr Panganiban by ASIC on 16 November 2015. Mr Panganiban was an authorised representative of Lionsgate Financial Group Pty Ltd and ASIC was concerned about advice he had given to some 50 clients while he was a representative of a previous financial group. An ASIC delegate conducted a hearing pursuant to the Notice of Hearing on 1 March 2016 but a decision has yet to be made regarding the banning of Mr Panganiban.
However, Mr Panganiban nevertheless requested that ASIC provide him with further documents, and for the purpose of the relevant case, client files of the clients to whom he had provided advice. ASIC refused to supply these documents on grounds of irrelevancy and confidentiality obligations. Mr Panganiban responded by filing an application to the Federal Court of Australia seeking orders that the documents requested be provided and that ASIC be restrained from making a decision in relation to the Hearing Notice. The point of his contention was that in declining to afford him the requested documents, ASIC had essentially denied him procedural fairness.
Court Decision
Justice Bromwich did not agree with Mr Panganiban. His Honour found that ASIC was allowed to use whatever matters or material it deemed relevant in the consideration of making a banning order and that until such a banning order is made, natural justice has not been denied Mr Panganiban because he isn’t supplied with the relevant matters and material. His Honour further explained that if ASIC decides to make a banning order on the matters and material it considers, Mr Panganiban would then have a right of review in the Administrative Appeals Tribunal where he would have the "opportunity to advance a case on the relevance of the client files in a forum that is legally and practically best equipped to deal with them in the course of making a merits review decision".
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