Well put.
The error that many are falling into is possibly in some perceived notion that the SOR is to be treated as factually accurate. That is simply incorrect. It is not a merits review. The whole application surrounding the publication of the ASX reasons, and whether ISX could withstand that, is upon well founded legal principles. It's a very discrete legal argument and the judge is certainly a long way from making any conclusion one way or the other on, 1) the merits of the substantive case, or, 2) the accuracy or otherwise of the SOR.
If there was any doubt in para [39] of the judgment, then what is contained in para [40] is the clincher:
"Merely establishingfactual errors in the reasoning process would not impugn the decision to publish the reasons as a breach of any of those duties, including the allegation of breach of duty to act reasonably. To show a serious question to be tried on the alleged breach of the duty to act reasonably requires ISX to show a serious question to be tried as to the legal reasonableness of ASX’s decision to publish its reasons, and merely attacking the factual accuracy of the reasons does not suffice to found a claim of legal unreasonableness. Nor does the fact that some of the reasoning is conjecture or incomplete." (My emphasis).
Once the 'serious question to be tried' was decided in favour of ASX that was it as far as the application went. As is usual though, the Judge went on to address 'balance of convenience' for the sake of completeness in the event that there was to be appellate review, which there will not be. Given what is stated at para 35 of the judgment, I wouldn't be surprised to see a further amended SOC if this matter continues.
Cheers.
