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

Federal Court of Australia

Frugtniet v Australian Securities and Investments Commission [2023] FCAFC 14 Appeal from: Frugtniet and Australian Securities and Investments Commission [2022] AATA 295

File number: VID 139 of 2022

Judgment of: MARKOVIC, MCELWAINE AND MCEVOY JJ

Date of judgment: 17 February 2023

Catchwords: ADMINISTRATIVE LAW – appeal from a decision of the second respondent (Tribunal) to uphold a decision of a delegate of the first respondent (ASIC) to make a banning order under the National Consumer Credit Protection Act 2009 (Cth) (NCCP Act) – where the banning order prohibited the applicant from engaging in credit activities – whether the Tribunal erred by applying the NCCP Act in force at the time of the Tribunal's decision in circumstances where the banning order was imposed under a previous version of the NCCP Act – where transitional provisions provided that a banning order in force prior to the amendment of the NCCP Act continues in force and may be dealt with as if it had been made under the amended subsection – statutory construction of may be dealt with – whether the Tribunal's decision is affected by apprehended bias because the Tribunal had knowledge of prejudicial but inadmissible facts relating to the applicant's spent convictions – whether the applicant was denied procedural fairness – whether the Tribunal impermissibly made findings by having regard to findings made in other proceedings or made findings that were not reasonably open to it or based on probative evidence – appeal dismissed

Legislation: Acts Interpretation Act 1901 (Cth) s 7(2) Administrative Appeals Tribunal Act 1975 (Cth) ss 33(1)(c), 37, 44(1) Crimes Act 1914 (Cth) s 85ZW Evidence Act 1995 (Cth) s 91 Financial Sector Reform (Hayne Royal Commission Response-Stronger Regulators (2019 Measures)) Act 2020 (Cth) National Consumer Credit Protection Act 2009 (Cth) ss 37, 37A, 37B, 80, 81 National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Cth) s 2(1) of Sch 14