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Top 10 thoughts on what ASX will use as arguments as a defence in the ISX vs ASX court case (ISX 2FASOC), page-111

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THGH

1,293 Posts.

370

20/09/20

19:52

Post #: 47486861
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Originally posted by itzgr82balive: ↑

Hi @Scott th Ratbag, @centro11 's Post #: 47482399 is taken straight out of the judge's decision for the interlocutory injunction sought by ISX. ISX argued that 18.8 was "repugnant and inconsistent with, the scheme for the enforcement of the Listing Rules". Judge Davies ruled against ISX and she referenced the decision in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd as support for her arguments. So ISX is well aware of the failure of their arguments in this regard.

This is now, however, a different matter. Once ASX released the SOR (as the court said ASX was allowed to do) it can now be argued that they did not follow their own guidance on releasing information on MAP. Guidance Note 8 "Matters of supposition or that are insufficiently definite to warrant disclosure” should not be released. However, as I posted recently, ASX writes and regulates compliance with its listing rules, but it appears it does not have to follow them. The better argument is as @vjojojose1 reminds us in Post#: 46072546 - that ISX is using section 1041H to argue that ASX "...must not, in this jurisdiction, engage in conduct, in relation to a financial product or a financialservice, that is misleading or deceptive or is likely to mislead or deceive. Note 1: Failure to comply with this subsection is not an offence. Note 2: Failure to comply with this subsection maylead to civil liability under section 1041I."

ASX might not have to follow its own listing rules but it is bound by their statutory obligations and this is where, in my opinion, the case must be argued. If ASX does not meet its statutory obligations as a holder of licences to operate markets and clearing and settlement facilities, it can face regulatory action, including potentially a suspension or cancellation of those licences. ASX is supposed to report any conflict of interest and how they are managing that conflict to ASIC. ASIC appears to be among the missing and doesn't appear to be attempting to regulate ASX. My assumptions? ISX shareholders do not represent a large % of the populace for them to care and they are overly concerned with the perception of confidence in our financial markets.

Perhaps I have missed them, but I am mystified about why I haven't seen any reference by ISX in their arguments to ASX being in competition - (real, future, perceived - as ASX says in its documentation). I believe ASX's real conflict of interest is more in the development of their KYC and KYCC application and the plan to be the "front-end" to businesses in that regard in Australia than in their settlement area. I worry that there is not enough strength in the arguments about ASX with regards to ASX following their statutory obligations without a strong argument around their conflict of interest.

I trust you have read the posts @ChillingOut, @THGH, and @IsoscelesDancer, to name a few, in their very relevant and helpful posts in the ISX vs ASX thread. I am, as I have been called, only a "bush lawyer" - although I have won every case I have argued in the supreme court. Of course, there was only one - and, to be frank, that was probably only because they didn't take me seriously before our day in court and were overly cocky, unprepared and sure of their success. Let's hope this is the same for ASX.

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I think the "competition/ conflict of interest" is in SOC, it is just not in direct terms.

paragraph 16.D, 21.F - "improper purpose", these words can be linked to anything in my opinion, including conflicts of interest.

Also, many claims about lack of due process and procedural fairness. These terms could also link to conflicts of interest, in my opinion.

Last edited by THGH: 20/09/20

ISX Price at posting: $1.07 Sentiment: Hold Disclosure: Held
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