Good Morning,
Who knows what today will serve up but I did have a quick look at the 2FASOC. If leave is granted for it to be filed, the proposed September 2020 Hearing date may be looking a little precarious. I can certainly see the arguments on both sides. ISX want to expand their case as per the amendments in the document in light of supervening events. ASX's argument (in part) is to the effect of: 'What is the point in continuing the proceedings seeking to lift a suspension when you're looking at passing a resolution to delist'. Fair call but it completely disregards the relief being sought for damages. I doubt very much that ISX would be prepared to leave and simply say, 'thanks for the memories'. Similarly, it's unlikely that ASX will say, 'Well, you're off. All the best and here's $50M for your troubles'.
Put the money to one side for a moment. This is going to be huge and it's going to be ugly. When you're calling for all phone and text records, file notes, memoranda, etc., during a certain time period and nominating people, that will set up a battle royale of itself. (I'm not too sure how much of the ASIC material will get obtainable). The list of discovery documents sought in Schedules A and B (pages 66 -70) would cause anyone many sleepless nights. (Ironically, they were due to be provided today as per the proposed timetable but that's gone out the window). You're calling the credibility of someone squarely into question and if you've got records of conversations and other matters that are either 'denied' or 'not recalled', the whole thing start to get a bad whiff about it like some ICAC sting.
On another note, I recall someone recently suggesting that this case (particularly if it goes the distance), would form part of a business law module at universities one day. I couldn't agree more. If there's a Masters student out there looking for a research project, here's your ticket and topic. Corporate law, directors duties, fiduciaries, licensees' obligations, market rules, contract law, principles of assessment of damages, remoteness, causation, it's got the lot.
Just as an aside, I started having a look at some sections of the Corps Act and the Market integrity Rules. I've attached both and what is referred to are easy to find. Firstly, the MI Rules, when looking at them through the prism of the principles underpinning the ASX Listing Rules and the application of those Listing Rules (the latter is their document on their website). Check out Rule 1.1.5 and it's clear from that (if ever there was any doubt), that the rules apply to market operators (ASX) and market participants (ISX).
So far, so good. Now, for example, scroll down to rules 2.2.4 and 2.2.5. Did ASX comply with these 'immediately' as required? Have they even notified their insurer? I wouldn't have a clue if they've complied and that's one of the most significant problems - everything is shrouded in secrecy that would rival MI5. That's just one instance, there's plenty more.
Jumping over to the Corps Act. As most know, this is a lengthy and complex piece of legislation. Some people devote a whole career to only a portion of it. If you have a some spare time, have a look at Part 7.2 which covers the Licensing of Financial Markets. It won't take too long. It would be familiar to most because within it is Section 792A(a) that is referred to at para 2(e) of the original SOC (and also the amended version which is the subject of the upcoming Motion). You can see for yourself the general obligations outlined in that section. But I strongly recommend casting an eye over the other obligations and duties on ASX - it's quite eye-opening when viewed in tandem with the facts of this case as they're unfolding.
For example, have a look at Sections 797C, 798B, 798C, 798DA and 798E. That latter is a cracker if things come up to proof. I think most always knew things could be on the nose, but seeing it all in statutory form is both comforting and gobsmacking if made out.
If you've got that far, go the extra yard and scroll a little further to Part 7.2A - 'Supervision of Financial Markets' - because that's where things can really heat up if things go pear-shaped for individuals.
I suspect that it will continue to be a flurry of activity between now and 17 July if the correspondence between HWL and HSF is anything to go by. So long as Victoria can keep the Covid numbers down, it should be an open Court, otherwise a virtual Court again.
Cheers, enjoy the day.
https://www.legislation.gov.au/Details/F2018C00334http://www.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_act/ca2001172/
