O'Brien v Australian Securities and Investments Commissioner; Gillfillan v Australian Securities and Investments Commissioner; Koffel v Australian Securities and Investments Commission

[2009] NSWCA 312

NSW Court of Appeal

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Interrogate

Catchwords

1. Corporations
2. › Directors
3. › Disqualification from managing a corporation
4. › Stay of disqualification order pending appeal
5. › Whether to grant stay
6. › Whether significant repair to damaged reputation worked by granting stay
7. › Whether failure to grant stay would cause significant and irreversible prejudice
8. › Corporations Act 2001 (Cth), s 206C(1)
1. Practice and Procedure
2. › Stay of proceedings pending appeal
3. › Principles governing grant of stay
4. › Whether applicant must demonstrate special or exceptional circumstances
5. › Balance of convenience
6. › Whether appeal rendered nugatory without stay
7. › Uniform Civil Procedure Rules 2005, r 51.44
1. Corporations
2. › Civil penalty proceedings
3. › Nature of civil penalty proceedings
4. › Whether civil penalty proceedings analogous to criminal proceedings for purposes of stay application
5. › Whether bail principles apply
6. › Corporations Act 2001 (Cth), ss 206C, 1317G

Quick Take

An applicant for a stay of a disqualification order under s 206C of the Corporations Act is not required to demonstrate special or exceptional circumstances, and bail principles do not apply. However, the applicant must demonstrate actual prejudice with sufficient evidentiary detail; vague and general evidence of financial loss or reputational harm will be insufficient. Where evidence of prejudice is inadequate, the appropriate course is an application under s 206G for leave to manage specific corporations. Reputation damage caused by published judicial findings cannot be repaired by a stay; vindication comes only from success on appeal.