The Federal Court has dismissed an application made by Mr Rommel Panganiban, of Bella Vista, New South Wales, to restrain ASIC from making a decision on a possible financial services banning order against him.
Mr Panganiban was also ordered to pay ASIC's costs.
In his judgment, his Honour Justice Bromwich confirmed that it is for ASIC to determine the matters and material on which it proposes to rely in making a banning decision, and that it is those matters and material which the rules of natural justice require to be disclosed to the banning candidate.
An ASIC delegate will now consider material prepared as part of an ASIC surveillance into Mr Panganiban's conduct to determine whether a ban from financial services is warranted.
Background
On 16 November 2015, ASIC issued Mr Panganiban, a current authorised representative of Lionsgate Financial Group Pty Ltd, with a notice of hearing (Hearing Notice).
ASIC's concerns related to advice given by Mr Panganiban to approximately 50 clients while he was a representative of AMP Financial Planning Pty Ltd.
On 1 March 2016, the ASIC delegate conducted a hearing pursuant to the Hearing Notice. Mr Panganiban was represented by both a solicitor and Senior Counsel at the hearing. A decision regarding ASIC's concerns and whether a banning order is appropriate is yet to be made by the ASIC delegate.
Following the hearing, Mr Panganiban requested that ASIC provide him with further documents, including the client files of the clients to whom Mr Panganiban had provided advice. ASIC declined to provide Mr Panganiban with the client files on the basis of relevance and confidentiality obligations owed by ASIC.
Following ASIC declining the request, Mr Panganiban filed an application in the Federal Court seeking orders that ASIC provide him with the requested material and that ASIC be restrained from making a decision in relation to the Hearing Notice. In his application, Mr Panganiban claimed that by failing to provide him with the client files, ASIC had denied him procedural fairness.
Mr Panganiban's application was heard on 21 April 2016. On 13 May 2016, his Honour Justice Bromwich delivered his judgment, in which he dismissed the application and awarded costs to ASIC.
His Honour confirmed that ASIC had not denied Mr Panganiban natural justice by failing to provide him with the requested material. His Honour also stated that if the ASIC delegate decides to make a banning order, Mr Panganiban would 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".
A copy of the Court's judgment is available here.