Court dismisses challenge against ASIC probe

Provide Capital's claim is "illogical," judge says

Court dismisses challenge against ASIC probe


By Mina Martin

The Federal Court has rejected Provide Nominees’ (Provide Capital) attempt to halt an investigation by ASIC, affirming the regulatory body’s authority to proceed with its probe.

Justice Helen Rofe dismissed the application, aligning with ASIC’s argument that the challenge had no chance of success.

Provide Capital’s legal arguments fall short

Provide Capital’s legal challenge was predicated on the claim that ASIC lacked the necessary state of mind under the ASIC Act to initiate an investigation.

However, Rofe labeled this argument as “illogical,” concluding that there was “no reasonable prospect of success” for Provide Capital’s application.

Additionally, a request by Provide Capital for documents related to ASIC’s investigation was criticised by Rofe as akin to “fishing” or “trawling” for evidence, suggesting she would have dismissed this request had it been necessary to decide on it.

In a further blow to Provide Capital, Rofe has ordered the company to cover ASIC’s legal expenses.

ASIC chair comments on victory

ASIC Chair Joe Longo welcomed the judgment, emphasising the importance of protecting the integrity of ASIC’s investigative processes.

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

Background of the case

ASIC initiated a formal investigation into Provide Capital on March 29, 2022, concerning suspicions of false and misleading conduct. Provide Capital’s subsequent legal maneuver to block further investigation was filed on Dec. 13 but has now been conclusively dismissed by the Federal Court.

For other recent ASIC stories, click here and here.

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