BLACK CAT SYNDICATE LIMITED -v- ASX LIMITED [No 2] [2026] WASC 47 | Case summary

Judgment (12 paragraphs)

[1]

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

[2]

On 17 December 2025, I made orders in terms of the plaintiff's originating summons filed on 12 December 2025, which sought orders for the defendant, the Australian Stock Exchange Limited (ASX), to give discovery of documents in its possession relating to the identity of brokers involved in the placing of specific bids for the purchase of Black Cat shares on-market.
Order 4 of those orders gave Black Cat liberty to apply for further or varied relief.
On 27 January 2026, Black Cat exercised its liberty to apply for further orders by filing a letter with the court seeking a further hearing in this matter, as well as a minute of proposed orders. In the minute of proposed orders, Black Cat seeks discovery in relation to 15 additional bids that were placed for the purchase of its shares on market between 1 May 2025 and 21 January 2026 (Additional Bids).
In support of the application, Black Cat has filed two affidavits being an affidavit of Davide Bosio, a director of Black Cat, which was filed on 27 January 2026, and an affidavit of Jennifer Kelly, a legal secretary employed by Black Cat's solicitors, which was filed on 28 January 2026.

The factual background to this matter was previously summarised in the previous decision I made in respect of this matter.[2] For the purposes of this application, I do not intend to repeat that summary but simply summarise the events that have occurred since the delivery of those reasons.
Black Cat recently approached a stockbroker who had access to a higher level of IRESS functionality than is available to Black Cat. This enabled the stockbroker to access retrospective information about additional cancelled orders of Black Cat shares. However, the broker is unable to access information that would enable the identification of the brokers involved in the placing, amendment or cancellation of these orders. Black Cat believes that these additional orders also relate to the market manipulation technique that has impacted and is continuing to impact Black Cat.[3]
At present, Black Cat does not know and is unable to ascertain the identity of the bidder or bidders involved in the placing of the additional bids.[4] The ASX has confirmed it has access to information that would enable the identification of the brokers involved but will only provide Black Cat with this information if an order is made by the court.[5]
Black Cat quite properly drew to my attention that it has commenced separate proceedings in this court for pre-action discovery against the broker that was identified in the material provided by the ASX, in accordance with the orders made on 17 December 2025.[6] Those proceedings are being case managed by Lemonis J.

Turning to the question as to whether the orders for discovery should be made, I summarised the relevant legal principles that govern an application for pre-action discovery in my decision in this matter that was delivered in December 2025.[7] I have adopted those same principles in dealing with the application.
It is sufficient for the purpose of this application to make the following observations.
First, I am satisfied, on the evidence before me, that Black Cat may have a cause of action for market manipulation as a consequence of the conduct referred to in Mr Bosio's affidavit, and that it wishes to commence proceedings against the relevant parties responsible for or involved in this conduct. At present, it is unable to identify these parties.
Second, I am satisfied from Mr Bosio's affidavit that there are reasonable grounds for Black Cat's belief that the ASX has information that would identify the bidder or bidders who made the additional bids. This has been confirmed by the ASX.
In my view, it is appropriate for the court to exercise its discretion to order the further discovery sought by Black Cat. In my view, where there are reasonable grounds for suspecting that market manipulation has occurred, it is in the interests of justice that an applicant be provided with documents to enable it to take action in respect of the wrong of which it complains.
For these reasons, I am satisfied it is appropriate to make orders in terms of Black Cat's minute of proposed orders filed 27 January 2026.

BLACK CAT SYNDICATE LIMITED -v- ASX LIMITED [No 2] [2026] WASC 47 (24 February 2026)

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Judgment (12 paragraphs)