Australian Securities and Investments Commission v Gilliland [2022] FCA 1421

Federal Court of Australia

Australian Securities and Investments Commission v Gilliland [2022] FCA 1421 File number(s): QUD 277 of 2020

Judgment of: COLLIER J

Date of judgment: 30 November 2022

Catchwords: SUPERANNUATION – review of decision of Administrative Appeals Tribunal – self-managed super fund – approved SMSF auditor – disqualification order issued by ASIC – s 130F of the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act) – where respondent breached obligations of independence in performing duties under the SIS Act as an approved auditor – auditing funds of immediate family and close family members - where Tribunal found that the respondent misinterpreted independence standards required of approved auditor – where Tribunal overturned disqualification order – whether general deterrence is a mandatory consideration in issuing disqualification order – whether Tribunal failed to take into account relevant factor – application allowed

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) Corporations Act 2001 (Cth) Superannuation Industry (Supervision) Act 1993 (Cth) Superannuation Industry (Supervision) Regulations 1994 (Cth)

Cases cited: Australian Securities and Investment Commission v McCormack (2017) 160 ALD 155, 170; [2017] FCA 672 Gilliland and Australian Securities and Investments Commission [2020] AATA 2660 Howarth and Australia Securities and Investments Commission (2008) 101 ALD 602; [2008] AATA 278 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 Re HIH Insurance Ltd (In prov liq); Australian Securities and Investments Commission v Adler [2002] NSWSC 483; 42 ACSR 80 Whittle and Australian Securities and Investments Commission [2018] AATA 1861