ISX vs. ASX: Am I missing something? How is this NOT direct competition with ISX., page-27

G'day,

It's Sunday, so I'll try to keep it short as you touch on a few things. You're right - nowhere in the SOC (original or amended) is there any mention of anti-competitive conduct. That's the problem, it's not pleaded, and something of that importance can't be simply implied and read into a pleading, so it's not an issue for the Judge to decide. In short, ISX can't start running an anti-competition argument at the Hearing, as it will be objected to and not permitted. I think there may be some confusion regarding actual and potential conflict. In either case, it's for ISX to definitively show what the source of that conflict is. If it's some form of technology (rivaling ISX) that is an ASX work in progress and yet to reach fruition, then I can't see how it can be a source of conflict, actual or perceived. It doesn't exist yet in final form as I understand it. Either way, ISX bears the onus, which would be onerous as you'd be asking the Court to draw strong inferences from whatever facts could be made out. Not easy.

I can only merely reiterate that if you want to bring a cause of action, you have to plead it and provide particulars. A Judge is not going to frame a case for a party, particularly at trial. I can't see how "ASX's performance as market licensee" relates to what you're suggesting. It can't be suggested that ISX are in competition as a market licensee? Maybe I'm misunderstanding what you're attempting to convey. They've already pleaded breach of the Listing Rules and the other matters expressly outlined in the document. If what you're saying is that the breach is due to some form of competition between the parties, it has to be spelled out. The 2FASOC quite exhaustively outlines the orders, declarations and other matters being sought from 'A' through to 'U' (pages 53 - 56, on the version I have) and there's no mention of a declaration being sought for anti-competitive conduct or for breach of a specific anti-competitive statutory provision. Whilst it's open to ISX to make a further application to amend the SOC if they think it may have legs, there could be difficulties as there's now a fairly strict timetable in place. I would be confident that this issue has been well-canvassed from the perspective of ISX already by those at the coalface and a decision has been made that accords with the SOC being in its current (and most likely final) form.

I think your assumption that "ASX is in competition with ISX is part of the evidence by which those facts are proved" is where the misunderstanding may be. If ISX say that ASX are in competition with them and they are flouting the rules and the legislative provisions, then they have to plead that specifically, with reference to the relevant sections of the Act and the rules. It has to have sufficient particularity so that it can be clearly understood and a Defence can be filed to meet it, and it has to have evidence to underpin it.

I hope that helps and that we're not at cross-purposes.

Cheers.