Ann: Updated Statement of Claim ISX vs ASX, page-79

(Hopefully this more legible.)


@ben79 I think your comments capture it best. Once Lewis and Karantzis locked horns, it was personal and it was not going to end well (or end at all).

A few things:

1. Whilst it's very tempting, it's best to plead facts not evidence. It might make for a good read now but much of this is for the trial and closing submissions when the evidence has been adduced and witnesses have been cross-examined on contents. The documents speak for themselves;

2. The large effort spent on highlighting other companies is interesting but largely irrelevant to the initial and ongoing suspension of ISX. It might show inconsistencies but you have to sheet that back to the facts surrounding the ISX suspension. I don't know all the facts of the purported indiscretions of other companies, only select bits have been highlighted, but they're all unique to a particular set of circumstances. It will probably get a sympathetic ear from the Bench but simply because someone got a speeding fine when plenty of cars passing by didn't doesn't mean you get off your speeding fine (a hackneyed example, I know, but you get the drift);

3. Unfortunately, ASX have this concept of an overriding 'absolute discretion'. I don't agree with that level of largely unfettered power but I certainly would rather have a Court decide on it than an ASX Appeal Board. Enough has been said about that discretion and I'm not going to re-invent the wheel but it is a large hurdle to get over. I'm not saying that ISX won't, but demonstrating Wednesbury unreasonableness (as interpreted in a couple of more recent High Court cases) is not a simple lay-down misere. Be mindful that absence of 'hard evidence' or 'insufficient evidence' doesn't equate to 'no evidence' and an expression of personal opinion is nothing more than that- a personal opinion. I can't comment on the internal ASX chain of command, as alleged, as I simply don't know it. The initial suspension may well be found to be unjustified and ASX will rightly cop a rap for that, but isn't it really what happens after that which is important, i.e., reasons for ongoing suspension. It seems that that is the time when ASX and ASIC start to lineup the ducks knowing that the house may not be entirely in order;

4. Court pleadings are not some sort of instalment plan. If this is the highwater mark of what has been turned up on discovery, then ISX have to lead with their front foot now. There can't be any of this "we're sitting on a treasure trove" stuff. This is the 4FASOC - I understand that this material is just in but they won't be permitted to keep amending the SOC particularly if they're sitting on something;

5. None of what is outlined in the latest SOC version is likely to rattle either ASX or ASIC to any great extent. They know about it, they wrote it, they returned it under Court order, they knew it would surface, they didn't resist the 4FASOC, and I expect they'll answer it in their Reply. Confess and avoid. "Yes your Honour, both parties could have handled things better in hindsight". I agree, it's not a good look and they should get a toweling from some journos, but it's not the torpedo that many would think and these people have thick hides. The ATO was front and centre a few weeks back. Likewise, this will get its airtime for a period but, then it's "short memories" for the broader public until someone is sworn in at the hearing and has a document shoved under their nose. Certainly don't expect anything in print from the AFR stable;

6. This Judge is very experienced and very clever. There is no way she will simply look at the documents on their face and not question what underpins them and what it was that set the ball in motion, and then look at what is behind that. Think about it. If someone arrives in Court with documents that suggest that a suspension is unlawful, the first question you ask is why was the market operator (plus or minus the regulator) even looking into it and whatever answer you get, you look for further antecedents from there, and you keep going until you're satisfied that it was unwarranted. If ISX don't strap it up and cover their bases on this so that it is watertight, then rest assured that ASX will.

I guess the important thing for now is that this material has turned up and provides some cold comfort to many rather than the big end of town being seen to be infallible and blameless. Where it goes from here and how much gravitas it generates remains to be seen. I think the best outcome is still to have the matters resolved and move on, terms not to be disclosed. Now would be the best time for it whilst this is a bit raw. As with all compromised settlements, best result is when all the parties walk away feeling that they've had a bit of a win, but could've done better. List elsewhere, do whatever, get on with the business, and put this wholly regrettable story behind.

I'm sure the overwhelming majority of holders are not interested in mounting a one company war in an effort to take down ASX and ASIC. Be realistic, they'll always be around. They may get a little bruised this time, but they'll always be around. Nobody wants to see this dragging on for another 12 months (at least) and then a possible appeal on the back of that. Let ASX get their Reply filed and get it into mediation ASAP.

cheers