SP1 (ASX) ASIC Commences Proceedings Against ISX and JK

Originally posted by itzgr82balive: ↑

In an effort for completeness, I reviewed my scribbly notes and my response was accurate - VISA AP does not want to provide documents and correspondence between VISA EU and other European VISA entities.

Further to my notes:

Munro's affidavit defines Visa as Visa AP (Australia only) and states that between July 2020 and January 2021 Visa produced over 3,000 documents to ASIC but that later he refers to 2,661 documents which refer to documents from overseas referring to various countries in Europe - therefore VISA AP received and sent to ASIC documents from other VISA entities.

When HWL inquired of Gilbert and Tobin (G&T) why VISA only provided 10 documents in response to the subpoena, G&T responded that Visa had produced all documents that it has identified in its possession, custody, or control in response to the affidavit. Munro (G&T) responded that VISA did not ask other European entities to produce documents responsive to the subpoena, as it has no control over these entities, and in any event, is not required to. Munro further said that the subpoena and the ASIC notices are different - the wording was different, so different documents are responsive. Munro further confirmed that there are only 10 documents that fall within the scope (that being that the documents exist that are responsive to subpoena and in VISA APs possession, custody, or control) and that "an enormous bulk of the 3,000 plus items were documents between ISX and VISA. A relatively small number of documents are entirely between VISA entities."

The registrar went on to say that he needed evidence that the searches were done and added that VISA AP previously had these documents in their possession since they provided them to ASIC and asked how it came to its view what documents it does hold are either privileged or do not fall within the scope of subpoena... JM (HWL) reminded the registrar of Moffett's extra-judicial comments requiring a person for examination in respect of searches undertaken and stated that any affidavit must explain how VISA AP came into possession, custody or control of these documents.

This is when the registrar said that evidence has to come first (before an officer was examined by HWL under oath in court) and he (the registra) will require an affidavit of Visa in relation to its compliance and the affidavit must not come from the solicitor (G&T) recounting its instructions - it had to come from an actual officer of VISA AP. He added that he didn't want G&T going on oath in relation to this affidavit.

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It will be a brave soul who swears the affidavit for VISA AP. Will they seriously try to say we didn't have the documents except for the brief moment when we passed them on to ASIC, didn't keep copies and now therefore don't have them. Good luck with that! If you then get cross-examined make sure you bring a tooth brush!