If you wish to plead something in a SOC, it has to have an evidentiary basis underpinning it otherwise a lawyer cannot and should not certify it;
In the circumstances of this case, an allegation of anti-competitive behaviour, for the reasons being bandied around, is a very serious allegation;
Such an allegation is tantamount to saying that a person or entity has engaged in some form of underhanded or nefarious conduct for their own benefit and, in these circumstances, under the guise of something else;
When you make an allegation like that it has to be thoroughly particularised. It's not enough to simply say that ASX are putting the brakes on ISX because they're worried they'll be a market competitor. Your SOC would be struck out. You have to spell out in very precise terms in the SOC what the conduct is. It has to be very precise in form and basis.
If you're heading down that path you need rock solid evidence from the get-go and not merely a 'hunch' or a 'suspicion'. 'He said/she said' simply won't cut it. Two things fall from that: 1) I suspect, despite suspicions, the evidence required to establish an allegation such as that is simply lacking, and, 2) You're never going to get a proper officer stand up and give that evidence unless they're a whistle-blower.
Even if you think you have the evidence, you may not satisfy the burden of proof to the requisite standard, that is, on the balance of probabilities.
When you're making these sort of allegations, Courts do not introduce a third and intermediate standard of proof between 'balance of probabilities' and 'beyond reasonable doubt'. The evidence is tested in line with what is known as the Briginshaw test. It's an old High Court decision from the 1930's that you can look up and whilst there, have a look at a High Court decision from the early 1990's of NEAT Holdings and in particular the plurality judgment dealing with allegations of fraud, etc, in civil cases. It basically says, in not so many words, it's right to assume that people ordinarily carry on their affairs in a legal manner so either put up, or shut up.
In any event, why muddy the waters with this argument when you've got a good case already proceeding? Why not save these points for cross-examination going to, for example, motive? For arguments sake, how improper and embarrassing would it be if ASX are shown to have suspended ISX (as at 2 Oct 2019 and continuing) for reasons other than those that they managed to dredge up (that are being challenged), or those that they think carry some sort of weight following a 'fishing expedition' inquiry since Oct 2019 that are either being challenged or being addressed by ISX in accordance with ASX directions?
As to the alleged conversations between ASIC and ASX, there would (or should) be contemporaneous file notes documenting what was said. That can all be tested at the Hearing also when the participants of those teleconferences are required to give evidence.
I could keep going but I won't. I have noticed your posts from time to time with a common theme. Please note that I don't engage in HC dialogue so if you feel the need to reply, I should let you know in advance that there won't be an element of reciprocity.
Cheers.
ISX Price at posting:
$1.07 Sentiment: None Disclosure: Held
