Provide Nominees Pty Ltd v Australian Securities and Investments Commission

The appeal in Provide Nominees Pty Ltd v Australian Securities and Investments Commission was brought before the court by the Australian Securities and Investments Commission (ASIC) against Provide Nominees Pty Ltd. ASIC sought relief following Provide's failure to comply with a notice issued under the Australian Securities and Investments Act 2001 (Cth). The primary judge found ASIC had fulfilled the pre-condition in s 70(2) of the Act, which requires ASIC to certify in writing the failure to comply. The main legal issues before the court were whether the primary judge was correct in finding that the court was empowered to conduct an inquiry under s 70(3) of the Act, whether s 70(2) requires certification by ASIC of a failure "without reasonable excuse", and the meaning of "failure" in s 70(1) of the Act. The court found that the word "failure" in s 70(1) of the Act is a defined term under the Act and that the "failure" under s 70(1) is the failure to comply with a requirement made under Part 3 of the ASIC Act. The court also found that certification is a mode of proof, and it is the responsibility of ASIC to certify a lack of reasonable excuse. The court dismissed the appeal with costs.