Isx vs AFR, page-186

G'day@THGH

First up, I haven't seen the Deed of 12 March 2015, so I can only go on what is in the pleadings and assume that is accurate.

'Absolute discretion' is exactly that. In short, ASX can make a decision to do something but they're not obliged to do so. It's usually a discretionary matter that involves the word 'may' rather than 'must'. Assuming it is made out, Wednesbury unreasonableness is a ground for judicial review of administrative decisions. There's numerous other grounds and there are text books written on the subject. It's a growing area simply because the number of administrative bodies and tribunals are on the rise over the past 20 years or so and people are asking courts to look at the decisions. Wednesbury effectively involves a decision that is so patently unreasonable, illogical, irrational, capricious, fanciful, call it whatever you want, that no reasonable decision-maker could have made it. It's a bit hard to argue that a decision is patently unreasonable when you don't know the basis on which it is made. Does anyone?

Looking at para 52, Section 792A outlines the general obligations. Further, this is particularized in para 52(a):

Clause 4 of the Australian Market Licence (Australian Stock Exchange Limited) 2002 as varied by Australian Market Licence (Australian Stock Exchange Limited) Variation Notice 2006 (No. 1).

I haven't seen that so I'm not sure what that points to but obviously it is referable to an obligation 'to exercise the power conferred by Listing Rule 17.3 to suspend an entity’s securities from quotation in accordance with the Listing Rules'.

I can't see anything in Rule 17.3 that requires the giving of reasons. I do note the word 'may' though. That's where your absolute discretion comes in. They may, but they're not obliged to. Don't confuse that with the s792A general obligations as a market licensee running the market.

I think the rest of what you've outlined deals with matters that are open to speculation one way or the other. The best people to inform in that regard would be the ISX participants at the teleconferences on 2 Oct (Mr Hart) and, especially, 7 Oct (Mr Hart/Ms Warrell). They were at the coalface at that time when (quoting from the 2FASOC), 'ASX explained to ISX the reasons for its decision to suspend ISX’s shares from quotation'. It's unlikely that anyone here would know what was discussed for 2 hours on 7 Oct. (Defence para 11(e)). I'd be interested to know but I think it can be safely assumed that those discussions would be all confidential.

Cheers.