ASIC v ISX Hearing, page-230

Thank you both for your summaries. I had composed my summary late last night directly into HC because I wanted to avoid any editing which becomes necessary for readability after posting from WORD to HC. Just after 12:AM when I was close to completion, HC had a memory problem, froze, and I lost the lot. I had copied much of my report offline while I was going along, so only lost a portion, but because I was mentally exhausted by that point, I went to bed. I had included the dialogue between Borski and Hart regarding VISA's AML reason for termination and included the reference to Kevin Lewis and his comments so I am adding this here.

I must say that I was very sympathetic to Hart when Borski was badgering him (my words, admittedly) about whether ISX was concerned about the potential effect of announcing the entire list of Visa reasons to the market, especially including the AML. It was probably a good legal strategy by Borski, but it was clear that Hart was very tired and a tad emotional by this point Hart had been responding to repeated versions of the same questions all day and it was clear (at least to me) that Borski was looking for a specific response that would throw JK under the bus. It was also clear in Hart's responses that he was adamant that he would not do that. I do in the end think that Borski thinks he got what he wanted, but my belief is that Collinson will clarify that in his cross-examination of Hart.

The point at which Hart got really emotional was when Borsky said (after several versions of the same question and several lengthy answers by Hart), "I'll take that answer as a 'Yes', but let me ask you in another way" and Borski again proceeded to assert that JK, Hart and the board had "turned their mind" about whether or not to disclose VISA's stated reasons including "AML issues and the like" in the response to the market. Hart begun by directly addressing the judge and said that it was incorrect to infer that ISX didn't have AML systems in place and added that there have been no indications of money laundering. He continued to say that "If people get the wrong opinion such as what Mr Boski said in his opening address that ISX was supporting money laundering, then that is the issue we have. So we are sitting there and saying how can we communicate this to the market so that it is fair and reasonable but that we don't get the market to draw the wrong conclusion. He said it was a very complicated matter" and then added that they had spent several days on it.

Then Hart went on to add that ISX was involved in litigation with ASX and that he had made 2 distinct approaches to the chief compliance officer, asking if ISX could form a better relationship and be more candid about some of the things and if ASX and ISX could join together for joint outcomes. Hart said that Kevin Lewis made it "crystal clear" when he said to Hart "I'll ask the questions, you answer the questions and I'll decide what gets published." Hart continued on to say that this was the hostile environment that ISX was in. Hart stated about Lewis that "He'd made a poor decision back in October 2 and that Lewis was spending the next six months justifying it". Hart had previously stated that Lewis had suspended ISX without reason and that there was documentation to show that. Hart continued with, " This was not a benevolent organisation trying to do the right thing, this was a hard-fought battle - we were fighting for survival." and, addressing Borski he said "We were a start-up, as you said in your opening."

It wasn't my impression that Borski ever let up on Hart. Borski then went on carefully rewording the same questions until he finally got Hart to state that Karantzis signed off on the letter with the implication that it was all JK's fault. He then moved on to the 15% topic. I thought Hart managed the 15% topic very well.