Frugtniet v Australian Securities and Investments Commission [2016] FCA 995

FEDERAL COURT OF AUSTRALIA

Frugtniet v Australian Securities and Investments Commission [2016] FCA 995 Appeal from: Frugtniet v Australian Securities and Investments Commission [2015] AATA 128

File number: VID 177 of 2015

Judge: BROMBERG J

Date of judgment: 22 August 2016

Catchwords: ADMINISTRATIVE LAW – appeal from a decision of the Administrative Appeals Tribunal to affirm a decision of the Australian Securities and Investments Commission to make a banning order under s 80 of the National Consumer Credit Protection Act 2009 (Cth) for being not a "fit and proper person to engage in credit activities" – consideration of "fit and proper person to engage in credit activities" – whether in applying that test the AAT erred by taking into account irrelevant considerations, including: whether "any other matter ASIC considers relevant" under s 80(2)(d) is impliedly limited to matters not the subject of a mandatory consideration under the subsection; whether non-disclosure is a relevant consideration where there is no legal obligation to disclose; whether a prior adverse finding in relation to fitness and propriety in a decision under appeal is an irrelevant consideration; whether a prior adverse finding in relation to fitness and propriety in a decision which could not have been appealed is an irrelevant consideration –whether the AAT erred by taking into account a spent conviction notwithstanding s 80(2) being expressly subject to Part VIIC of the Crimes Act 1914 (Cth) – whether Part VIIC precludes disclosure of a spent conviction to the AAT or consideration of a spent conviction by the AAT in circumstances where disclosure to and consideration by the primary decision-maker was so precluded – AAT was not so precluded – AAT did not err – appeal dismissed