court listing, page-3

Good afternoon.

It becomes apparent that the ASX investigation, whilst welcomed initially, became simply too protracted as is evident when looking at a chronology of the query letters/emails as per the Statement of Claim. Under their own hand, the ASX stated in their letter of 27 Nov that they anticipated providing draft findings by "the end of the next week", that is, by 6 Dec. ISX responds the next day (28 Nov) requesting the draft findings by 1pm on 1 Dec (which was a Sunday and not a Monday as described in the SOC. I suspect they meant 2 Dec and it's just a typo.) Regardless, that date comes and goes and ISX issues proceedings on Wed, 4 Dec. By that stage, things are two months down the track. Most would agree, however, that it would have been interesting to see the draft findings but, understandably, ISX were approaching the end of their tether and a decision was made to bring things to a head.

The thing that is troubling at that time is at least threefold though: 1) The ASX at the time of indicating when the draft findings would be available had as much information as they would have had in any event, that is, there is arguably no cogent reason why they couldn't comply by 1 Dec; 2) the ASX made no request for further information after 27 Nov having already been in receipt of the material listed in para 43 of the SOC; and, 3) unless the SOC is silent on this, the ASX could have (but appears they did not) make contact with ISX requesting an extension beyond 1 Dec. It's probably safe to assume that nothing further transpired (at least in writing) between the parties prior to at least 4 Dec when the SOC was filed and probably not until when it was served noting the ASX were on the record by 9 Dec.

As to the Defence, one may think that the ASX should have sufficient information to file one especially if they were only a few days off releasing their draft findings. Clearly, they had enough to prepare those to decide one way or the other insofar as maintaining or lifting a suspension went. They either had sufficient cause at that stage to justify an ongoing suspension or they didn't. If they did, ISX could have responded as per para 45(b) of the SOC. If they didn't and the draft findings were not adverse to ISX, you can't simply conduct an ongoing "fishing expedition" in the hope that it ultimately bears fruit.

One has to be pragmatic. The ASX are not going to put their hand up and admit to failing to act in good faith and/or honestly and fairly and/or reasonably in exercising their powers. Nor will they admit to breaching the Corps Act, breaching any implied contractual terms, or falling foul of any administrative law matters. No doubt the ISX lawyers will put the weights on the ASX to get their Defence on with sufficient particularity and a flurry of orders/directions as to case management matters will then follow and it will be brought back before the Court at the expiration of those. The ASX should be mindful of its regulatory expectations and the duties to act as a model litigant. Hopefully, the parties will have largely agreed on a timetable to get the matter progressing. Again, it is for ISX to make good and prove their claim by admissible evidence. ASX don't have to disprove the claim and they are entitled to raise matters in their Defence. Strictly speaking, the ASX can blanket deny where appropriate and put ISX to proof on as much or as little as they see fit. They may be penalised and admonished by the Court if they take every point particularly when it leads to a waste of the Courts time and resources. There may not be too much dispute over the existence of the documentary evidence as much of it will be business records coming in under a hearsay exception but privilege arguments will arise. Further, one would expect there will be witnesses (lay and expert) who would have to be called and that raises the stakes where credit findings and assessments of demeanour are likely to be made. Expert reports will have to be closely scrutinized and there's likely to be times when the evidence of one witness is preferable to that of another.

If it gets a full head of steam fuelled by two locked-in combative parties, this litigation will be long and complex. I agree that the two years mentioned elsewhere will be quite a conservative estimate and that's only round one. This matter may find its way to the Full Federal Court and even a High Court special leave application after that. I don't pretend to know enough about all the relevant conduct of the parties nor the factual matrix or circumstances that has brought it to this point as, quiet rightly, I'm not privy to most of it and I just go on what is in the public domain. But it is reasonable to suggest that in a matter of some complexity, there is more than a hint of prima facie acrimony between these parties that is not going to simply evaporate. Hopefully, we'll know more after 7 Feb as things move forward.

All the best.