Court backs ASIC’s investigatory powers

The Australian Securities and Investments Commission (ASIC) has scored another court win over investment manager, Provide Capital, after the company sought to question the ability of the regulator to investigate.

ASIC announced today that the Federal Court had dismissed an application by Provide Nominees Pty Ltd to prevent ASIC’s further investigation of the entity after Provide alleged the regulator “did not have the state of mind required to conduct an investigation under the ASIC Act.

ASIC said that Her Honour, Justice Rofe found that Provide’s argument was “illogical and therefore that Provide Capital’s application had now reasonable prospect of success”.

It said that as part of the proceeding, Provide Capital issued a notice to ASIC requesting documents relating to its investigation.

“Justice Rofe noted in her judgment that, while she did not need to decide on the notice due to the dismissal, ‘if I were required to reach a conclusion, I would have set the notice aside on the basis that it is fairly characterised as “fishing” or “trawling” for documents’,” it said.

Justice Rofe also ordered that Provide Capital pay ASIC’s costs.

Commenting on the outcome, ASIC Chair Joe Longo said, “The outcome in this case demonstrates ASIC’s commitment to taking action to prevent its investigations being delayed by baseless challenges to its powers”.

ASIC noted that it had last month also successfully defended an appeal in the Full Federal Court, in relation to order made by Justice O’Bryan regarding Provide Nominees failing to respond to a request by ASIC to produce documents.