My take (for what it is worth) is this:
ISX has acted very appropriately to instigate a court case on the 5th December and had really no choice considering the timing of ASX's proposed response, the possible complexity of the draft report bearing in mind the magnitude and variety of questions asked, and ASX's failure to accord procedural fairness to ISX. If I were management of ISX, I would absolutely NOT be trusting in a fair and unbiased draft finding. It is a reasonable assumption that the ASX would produce a negative draft report - possibly justifiably in ASX’s mind or possibly only to save face.
Consider ASX’s proposed timing of receiving a negative report for ISX:
1.10:06 a.m. 27 November - Moran said they would have the draft finding "end next week", i.e. Friday, 7 December.
2.ISX would then have from Monday 10 December - 21 December (two weeks) to respond and/or provide a proposal to address findings – just as people leave for Christmas break.
3.Virtually no-one works from the Christmas week to the end January.
4. If these assumptions are correct, then it would be February before the ASX even starts to consider if ISX's response and proposal to address findings are adequate. This consideration would also probably take a couple of weeks depending upon the complexity, and ISX could expect a response from ASX by 14th of February. If I were management of ISX, I would not trust that this would mean that ISX's suspension would be lifted considering past ASX performance.
5.The Federal case management hearing is on the 7th February. See https://www.fedcourt.gov.au/about/national-court-framework/case-management for an understanding of what may happen on that day. It will not be resolved by the courts on that day but I expect the courts will request that ISX and ASX sit down and attempt to agree to a resolution.
Now consider the possible implications if ISX had not instigated the court case:
1.ASX provides ISX with its draft report on 7 December and it is negative.
ASX has not stated that it would release its draft findings to the market before ISX has responded and ASX has considered the response.Additionally ASX would not have provided “procedural fairness” to ISX if it did so.
2.It would be sheer folly for ISX, if it received the report to do so before ISX provided a response and that response would only possibly be ready just before Christmas.
3.It would be a valid concern for ISX that the draft report might be leaked by someone within ASX, considering the alleged leaking by ASX of ISX confidential information such as ISX has stated in its statement of claim. The irreparable damage and stress to shareholders would be enormous especially if this occurred just before Christmas.
I agree with @gattertop that once ISX initiated the court case that ASX would not release the draft findings to ISX and ISX would know that.At the very least, the court case delays the draft finding until a more suitable timeframe - ie in the new year and provides a better environment for a proper response. And the court case may, in fact, just provide the impetus for both parties to sit down and resolve the issues.
There has been a lot of garbage recited on HC about just what ISX has claimed in the court case against ASX.This case is NOT just about getting ISX’s shares reinstated for quotation and it is NOT about whether ISX is guilty of anything or not.Guilt is separate from procedural fairness.
ISX is requesting from the courts (and I quote):
A.A declaration that ASX failed, in breach of the agreement, to accord procedural fairness to ISX and act in good faith and/or honestly and fairly and/or reasonably before suspending the quotation of its shares on the Australian Securities Exchange.
B.A declaration that ASX failed, in breach of the agreement, to act in good faith and/or honestly and fairly and/or reasonably by not lifting the suspension and reinstating ISX’s shares for quotation on the Australian Securities Exchange
C.A declaration that ASX failed to meet its obligations under its operating rules.
D.An order pursuant to sections 793C(2) and/or 1101B(1)(d) of the Corporations Act directing ASX to forthwith lift the suspension and reinstate ISX’s shares for quotation on the Australian Securities Exchange.
E.A declaration that ASX contravened section 792A(a) of the Corporations Act.
F.Further or alternatively to paragraph D above, an order pursuant to section1324(1) of the corporations Act requiring ASX to forthwith lift the suspension and reinstate the quotation of ISX’s shares on the Australian Securities Exchttp://www5.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s793c.htmlhange.
G.Further or alternatively to paragraphs D and F above, an order:
i.Setting aside the decisions not to lift the suspension and reinstate ISX’s shares for quotation on the Australian Securities Exchange, with effect from the date of the order; and
ii.Directing ASX to forthwith reinstate ISX’s shares for quotation on the Australian Securities Exchange
H.Damages (my emphasis)
I.Such other relief as the Court considers to be appropriate
J.Costs.
If you want to read the applicable sections of the Corporations Act
·793C(2):
·1101B(1)(d): http://www5.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s1101b.html
·792A(a) (mistake? Should be 792A(1)?: http://www5.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s792a.html
·1324(1): http://www5.austlii.edu.au/au/legis/cth/num_act/ca2001172/s1324.html
·794D(1) and 794D(2): http://www5.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s794d.html
