The Full Federal Court has dismissed an appeal by Provide Nominees Pty Ltd, trading as Provide Capital.
As part of an ongoing investigation, ob体育 previously served a notice on Provide Capital to produce documents which Provide Capital failed to do.听 Provide must now comply with a notice ob体育 issued to produce documents.
Section 33 of the ob体育 Act allows ob体育 to require the production of documents from a person, including a company. If a person fails to comply with such a request, under s70 of the ob体育 Act, ob体育 can certify that non-compliance to the Court and seek orders that the person produce documents as required by the notice.
Provide Capital alleged that ob体育 failed to include the words 鈥榳ithout reasonable excuse鈥� when certifying to the Court that Provide had failed to provide the documents.
ob体育 alleged that under s70 of the ob体育 Act, it was only required to certify Provide Capital's failure to produce documents and its action did not extend to certifying that the failure was 'without reasonable excuse'.
Justices Lee, Anderson and McElwaine determined that the orders previously made by Justice O鈥橞ryan in the Federal Court are correct, dismissing Provide Capital鈥檚 appeal and ordering they pay ob体育鈥檚 costs.
Background
ob体育 was concerned that Provide Capital failed to fully comply with an ob体育 notice, including by producing some documents with portions redacted.
On 2 December 2022, ob体育 commenced proceedings against Provide Capital seeking orders under s70 of the ob体育 Act (22-343MR).
Section 70 of the ob体育 Act allows ob体育 to certify to the Court that a person failed to comply with a notice to produce and to seek orders that the person comply with that requirement.
On 25 September 2023 Justice O鈥橞ryan ordered Provide Capital to produce the documents it failed to produce under ob体育鈥檚 notice to produce. When handing down his decision, Justice O鈥橞ryan noted that the 鈥榚vidence before the Court demonstrates a history of delay and obfuscation on the part of Provide in complying with the Notice. The most egregious example is the redaction of documents produced to ob体育.鈥櫶� On 20 October 2023 Provide Capital appealed the decision.
ob体育鈥檚 investigation into Provide Capital continues.
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Editor's Note 1:
On 21 March 2024, Provide Nominees Pty Ltd filed an application for special leave to appeal to the High Court of Australia in relation to the Full Federal Court鈥檚 decision handed down on 22 February 2024.
Editor's Note 2:听
On 28 March 2024, Provide Capital lodged an Interlocutory Application for orders staying order 1 of the Federal Court of Australia made on 25 September 2023 in ob体育 v Provide Nominees Pty Ltd (VID712/2022) until Provide Capital鈥檚 application for special leave to appeal to the High Court of Australia (M26/2024) is determined. Order 1 requires Provide Capital to produce certain unredacted books to ob体育. ob体育 opposed the stay application.
At the hearing on 3 April 2024, Provide Capital gave the court an undertaking that, in the event that their application for special leave to appeal to the High Court of Australia (M26/2024) is refused, the company will comply with order 1 by the next business day subsequent to the day on which the High Court of Australia publishes that decision.
On 3 April 2024, the Federal Court made the sought by Provide Capital to stay order 1 until determination of the special leave application and ordered ob体育 to pay Provide Capital鈥檚 costs of the Interlocutory Application. Provide Capital鈥檚 undertaking has been noted in the court order.
Editor's note 3:
On 6 June 2024, the High Court dismissed the special leave application by Provide Nominees Pty Ltd.