BLACK CAT SYNDICATE LIMITED -v- ASX LIMITED [2025] WASC 559 | Case summary

Supreme Court of WA|2026-01-20|Before: Hill J

(This judgment was delivered extemporaneously and has been edited from the transcript to include references, headings and to correct matters of grammar and expression.)

By originating summons dated 12 December 2025, the plaintiff, Black Cat Syndicate Limited (Black Cat), seeks orders pursuant to O 26A r 3 of the Rules of the Supreme Court 1971 (WA) (Rules), for the defendant, the Australian Stock Exchange Limited (ASX), to give discovery of documents in their possession relating to the identity of brokers involved in the placing of specific bids for the purchase of Black Cat shares on-market.
On 15 December 2025, Black Cat filed a certificate of urgency certifying that the application was of an urgent nature. For this reason, the application has been listed for hearing before me today.
In support of the application, Black Cat relied on the confidential affidavit of Gareth Solly, one of its directors, filed on 12 December 2025. Black Cat seeks orders for confidentiality over both this affidavit and the submissions it filed in support of the application. As required by the Rules, Black Cat filed a memorandum and a letter in support of the confidentiality orders sought.
In deciding both the substantive application and the confidentiality application, I have had the benefit of a written outline of submissions, as well as oral submissions from counsel who appeared before me this morning.

Black Cat is a Western Australian gold producer. It has been listed on the ASX since in or around 2018 and has a market capitalisation of approximately $700 - 800 million.[2]
In or about October 2025, the directors of Black Cat became aware that shares in the company appeared to have been the subject of a particular market manipulation technique. Because these transactions did not result in completed transactions, Black Cat has not been able to ascertain the description or identity of the bidder or bidders who placed these bids.[3]
Black Cat's solicitors wrote to the ASX requesting that the ASX provide it with information about the particular transactions. The ASX refused to provide any documents in the absence of an order from the court.[4]
Mr Solly's evidence is that Black Cat intends to commence proceedings in relation to this conduct and seek compensation as well as injunctive relief, but is at present unable to identify who the potential defendants to this claim would be.[5]

Order 26A, r 3 of the Rules provides that if a person appears to have a cause of action against a potential party, the court may order a non-party to give discovery to identify a potential party if the following conditions are satisfied:[6]

(a) the applicant wants to commence proceedings against the potential party or take proceedings against the potential party in the course of an action to which the applicant is a party;

(b) the applicant has made reasonable inquiries to identify the potential party;

(c) the application has not been able to ascertain a description of the potential party sufficient for the purpose of taking proceedings against the potential party; and

(d) there are reasonable grounds for believing that the non-party had, has, or is likely to have had or to have possession of information, documents, or any object that may assist in ascertaining the description of the potential party.

Before considering whether these conditions are satisfied, the court must be satisfied that the applicant appears to have a cause of action against the potential party. Although the applicant is not required to establish a prima facie case against the potential party, the court will not make an order for discovery if the prospective action is merely speculative.[7]
Even if the court is satisfied that the applicant appears to have a cause of action and that the four conditions have been met, the court's power to order discovery in those circumstances is discretionary. In exercising its discretion, the court will have regard to the applicant's prospects of success against the potential party. The court must also consider whether the order for discovery is necessary in the interests of justice; that is, whether the order is necessary to provide the applicant with an effective remedy in respect of the actionable wrong of which the applicant complains.[8]
In the circumstances of this case, where the evidence in support of the application is confidential, I am somewhat constrained in the reasons I can give for the orders I propose to make. It is sufficient for the purposes of this application to make the following observations.
First, I am satisfied that Black Cat may have a cause of action for market manipulation as a consequence of the conduct referred to in Mr Solly's affidavit. I am also satisfied that Black Cat would have standing to seek a compensation order (under s 1317J(2) of the Act), as well as injunctive relief to prevent continued breaches of the Act.
Second, I am satisfied from Mr Solly's affidavit that Black Cat has made reasonable inquiries to ascertain the identities of the person or persons it seeks to commence proceedings against, and that there are reasonable grounds for Black Cat's belief that the ASX has or is likely to have information that would identify the bidder or potential bidders.
In my view, it is appropriate that the court exercise its discretion to order discovery. In my view, where there is a suspicion that market manipulation has occurred, it is in the interests of justice that the applicant be provided with documents that will enable it to take action in respect of the wrong to which it complains.

In respect of the confidentiality orders that are sought, I am satisfied that, Mr Solly's affidavit contains commercially sensitive information regarding potential claims against third parties in circumstances where proceedings have not yet been commenced. On this basis, I consider it appropriate to make confidentiality orders over Mr Solly's affidavit, as well as the submissions, at least until the commencement of any substantive proceedings.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Email from J Rowe to Associate to Hill J dated 15 December 2025.

[2] Affidavit of Gareth Solly filed 12 December 2025 [4] - [5], 'GS-1'.

[3] Affidavit of Gareth Solly filed 12 December 2025 [11].

[4] Affidavit of Gareth Solly filed 12 December 2025 [12] - [14], 'GS-3', 'GS-4'.

[5] Affidavit of Gareth Solly filed 12 December 2025 [10].

[6] Hirschberg (ATF LPH Developments Keegan Street Trust) v Jameson Moore Pty Ltd [2018] WASC 348 [23].

[7] Hancock Family Memorial Foundation Ltd v Fieldhouse [No 2] [2008] WASC 147 [19], cited in Wright v Lemon (No 3) [2025] WASC 4 [16].

[8] Hooper v Kirella Pty Ltd [1999] FCA 1584; (1999) 96 FCR 1, 11, cited in Wright v Lemon (No 3) [2025] WASC 4 [17].

BLACK CAT SYNDICATE LIMITED -v- ASX LIMITED [2025] WASC 559 (20 January 2026)

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