ASIC’s case relied on establishing the contravention of a financial services law, specifically those relating to conduct that is misleading, deceptive, or dishonest. But AAT deputy president Stephen Boyle found a lack of care was instead to blame for the mistake.

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“Receiving money directly from clients and failing to pass that money on … was certainly in breach of his contractual obligations and it was, in my view, probably dishonest if one were to apply a broad meaning to the word ‘dishonest’,” Mr Boyle said in a ruling in September.

"I am satisfied that the double-charging was the result of a lack of care ... and not a fraud or deliberate scheme."

Mr Boyle noted that, despite the nature of Mr Hutchison’s conduct that was alleged by ASIC, ASIC did not make the argument that Mr Hutchison was not competent, which under the Act provides grounds for a ban.

"In making the reviewable decision, [ASIC] did not rely on any other subsections ... that there is reason to believe that [Mr Hutchison] is not adequately trained or is not competent to provide financial services and that argument was not raised by ASIC. The evidence did not seek to address that issue. "

I have no alternative but to set aside the Banning Order.

AAT deputy president Stephen Boyle

In a bid to have the ban reinstated, ASIC has appealed the decision to the Federal Court in Perth, where a case management hearing took place on January 30. ASIC would not comment on a matter before the courts.

Mr Hutchison resigned as a representative of RI Advice Group in 2012 but resumed providing advice as a director of WAWM Investment Holdings in Perth after the tribunal's ruling. RI Advice is owned by OnePath, formerly a subsidiary of the ANZ Banking Group.

An ANZ spokesman said as ASIC was appealing the decision it would be inappropriate to comment.

Mr Hutchison's lawyers also declined to comment on the matter.

Conduct showed a 'lack of care’, but was not ‘deliberate’

The tribunal found there was no reason for ASIC to believe Mr Hutchison was likely to contravene a financial services law in the future, nor that there was a basis to assert he was not of good fame or character.

Mr Boyle acknowledged despite Mr Hutchison’s “bad behaviour” being “well below” what was expected of a financial services adviser, it was inadequate grounds to find him of “not good fame or character”.

“I find that while the applicant’s conduct was 'bad behaviour' and well below the standard which could reasonably be expected of someone engaged in the provision of financial services, and in some cases was dishonest, that conduct is not sufficient to establish that the applicant is not of good fame or character,” the ruling said.

“That conduct may fall short of competence or the standard of management expected of someone carrying on a financial services business, but it is not conduct which is misleading or deceptive."

The decision involving Mr Hutchison comes after a Tasmanian financial planner who lied about his qualifications for 12 years and forged certificates of educational achievement to back up his story had his ban significantly reduced by the AAT.

ASIC permanently banned Hobart adviser Troy Williams in 2016 but the AAT overturned that decision in July 2018, instead imposing a six-year ban.

Financial advice came under the microscope at last year's Hayne royal commission into financial misconduct, with AMP admitting it had misled ASIC at least 20 times over fees for no service while the Commonwealth Bank was revealed to have charged fees to thousands of customers who had died.