Frugtniet v Australian Securities and Investments Commission [2019] HCA 16

HIGH COURT OF AUSTRALIA

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

RUDY FRUGTNIET APPELLANT

AND

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION RESPONDENT

Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 15 May 2019 M136/2018

ORDER

1. Appeal allowed.

2. Set aside orders 2 and 3 of the orders made by the Full Court of the Federal Court of Australia on 12 October 2017 and, in their place, order that:

"2. Appeal allowed.

3. Order 1 of the orders made by Bromberg J on 22 August 2016 and the order made by Bromberg J on 15 September 2016 be set aside and, in their place, order that the decision made by the Administrative Appeals Tribunal on 6 March 2015 be set aside and the matter be remitted to the Administrative Appeals Tribunal for reconsideration in accordance with law."

3. The respondent pay the costs of the appellant in this Court.

On appeal from the Federal Court of Australia

Representation

M H O'Bryan QC with J P Wheelahan for the appellant (instructed by SBA Law)

S B Lloyd SC with R C Knowles for the respondent (instructed by Australian Securities and Investments Commission)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Frugtniet v Australian Securities and Investments Commission

Administrative law (Cth) – Administrative Appeals Tribunal – Nature and scope of review – Where appellant's convictions spent under Pt VIIC of Crimes Act 1914 (Cth) – Where Div 3 of Pt VIIC of Crimes Act prohibited Australian Securities and Investments Commission ("ASIC") from taking into consideration spent convictions in deciding to make banning order – Where review of decision of ASIC by Administrative Appeals Tribunal – Where s 85ZZH(c) of Crimes Act provided that Div 3 of Pt VIIC does not apply to Commonwealth tribunal – Whether Administrative Appeals Tribunal entitled to take into consideration on review spent convictions which ASIC was prohibited from taking into consideration.