The last interlocutory injunction was not a delaying tactic. It was to prohibit ASX from releasing its "final reasons" report that was filled with unsubstantiated accusations which could cause damage to the reputation to ISX.
This amended statement of claim adds the charges of misleading and deceptive conduct by the ASX under s1041H of the Corporations act. And there are very substantial arguments to support that this will be found to be true.
The amended statement of claim says :
For the following reasons, the assertion that our client's (ISX's) proposed Second Further Amended Statement of Claim raises "several new issues" is unfounded:
(a) First, since at least 6 December 2019 (when your client provided its Draft Findings), and certainly since 24 January 2020 (when our client provides its Response), your client has known the facts pleaded in paragraphs 84 to 91 of the proposed Second Further Amended Statement of Claim.
(b) Secondly, since at least 12 March 2020 your client has known that our client's position is that the Draft Reasons and Final Reasons "do not contain an accurate representation of the facts and circumstances concerning ISX'. In this regard, we draw your attention to paragraph 71 (d) of the proposed Second Further Amended Statement of Claim, which was included in the Further Amended Statement of Claim filed on 12 March 2020.
,c) Thirdly, a fundamental premise of our client's Interlocutory Application was that "the Final Reasons do not contain an accurate representation of the facts and circumstances concerning ISX and are likely to mislead the market and other persons who read the document." In this regard, we draw your attention to paragraph 101 of our client's written submissions, the affidavits of Anthony Seyfert which were sworn on 12 March 2020 and 19 March 2020 and paragraphs 11, 36, 43, 48 of her Honour's judgment in relation to our client's Interlocutory Application (Judgment).,
d) Fourthly, in paragraph 37 of
the Judgment her Honour said that the evidence before the Court showed a serious question to be tried "in respect of the accuracy of particular findings made by ASX as detailed in its statement of reasons" and ASX did not contend to the contrary.
I think that the ASX will find a very unhappy judge who was led to believe that ISX would be allowed to release their response to the "Final Reasons" Report. ASX has not allowed ISX to do that. It is a fair question whether ASX really wants an informed market, or whether it just wants a market that believes ASX's view of the world.
