Pont Data Australia Pty Ltd v ASX Operation Pty Ltd

[1990] FCA 233

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY )	NO. NG485 of 1989

)

GENERAL DIVISION )

BETWEEN: PONT DATA AUSTRALIA PTY

LIMITED

AND: ASX OPERATION PTY LIMITED

First Respondent

AUSTRALIAN STOCK EXCHANGE

LIMITED

Second Respondent

AND BETWEEN: ASX OPERATIONS PTY LIMITED

Cross-Claimant

AND: PONT DATA AUSTRALIA PTY

LIMITED
Cross-Respondent

CORAM: PLACE: DATE :

matter on 9 February 1990 I deferred making any final orders	In respect of elther the claim or the cross-claim. Instead,
on that occasion, I dlrected as follows:

FEDERAL COURT OF

AUSTRALIA PRINCIPAL

C	REGISTRY
l?.

When I handed down reasons for judgment in this

"(1) In the event that the respondents desire

to adduce evidence as to the costs
involved in supplying signal C to the
applicant and/or in relatlon to the
amount of a reasonable profit on such
costs, that evidence be adduced by
affidavits to be flled within one month

of this day.

(2) The matter stand over for further mention

at 9.30am on Friday, 16 March, 1990."

When the matter came back into the list on 16 March an

extension of time was requested by the respondents. This
application was acceded to and the matter has been further
adjourned until today, the purpose being to allow the respondents
to put on evidence pursuant to the invitation extended to them by
direction (l).

The reason for the course taken by me is set out in my reasons for judgment at pp.92 to 95. Put shortly, the situation
was that the respondent dld not adduce evidence at the trial
which indicated the cost involved in supplying signal C which it
would not otherwise incur. As I said in my reasons, the cost of
signal C was an Issue in the case upon which evldence might have been led at the trial; but it was not a central issue. I took

the view, expressing the opinion that in so dolng I was perhaps
erring on the side of indulgence, that I should give to the
respondents a further opportunity to demonstrate, if they were
able, that there is some cost attached to the supply of signal C
which they would not otherwise incur and, if so, its extent. In
particular I referred to some evidence given by Mr Marshman that
further work had recently been done to isolate the costs
associated with each of the signals and his claim that the cost
of signal C was now "ascertainable within certain broad
parameters"

In response to the invitation which I extended, the

respondents have filed an affidavit of Wayne Richard Lonergan, a
chartered accountant, dated 24 April 1990. This affidavit
annexes a lengthy report prepared by Nr Lonergan, the subject
matter belng, according to his description, the cost to ASX of
providing signal C and a reasonable basis of charging the
information vendors for signal C. The report is divided into a
number of separate sections.

Objection has been taken to the tender of thls report on

behalf of the applicant, the submission being that the report
falls far outside the leave which was reserved to the respondents

on 9 February and, moreover, in vital respects contradicts the

case which was led by the respondents at the trial.	I thlnk that
there is substance in those objections.

At the trial I noted at p . 4 8 of my reasons as follows:

"It was common ground amongst all the witnesses
who dealt with the matter that, regardless of
Signal "C", ASX would need to obtain and store
information about the transactions consummated
on the floors of the two exchanges and through
SEATS. "
In referring to storing information I was, of course,

referring to the storage of information in a computer data

base.

This passage was referred to during the course of

argument today and counsel for the respondents specifically
affirmed the correctness of what was there set out.

It is against that background that I turn to look at

Mr Lonergan's report. Section 1 of the report, which includes
paragraphs 1 to 12, is an introductory section. It has no
independent value. Section 2 of the report, which does not
have a separate paragraph number but occupies pp.5 to 8
inclusive, consists of a summary of conclusions. The flrst
statement made in the summary of conclusions is noteworthy.
It reads:

"Market information is a main product, not a by

product, of the ASX."

If by this statement Mr Lonergan means that it is

important, indeed vitally important, for information as to

stock exchange dealings to be available to potential investors
and to the community generally, there could be no argument
with his statement. However, if, by the statement, Mr
Lonergan means that the provision of market information is an
object of the ASX for its own sake, to be pursued irrespective
of the continuation of ASX's functions, the statement is
manifestly absurd. I hesitate to attribute the second meaning
to Mr Lonergan, but I note that, throughout his report, he
speaks of the provision of Signal C as belng a "main product"
of the exchange, as if it exists for its own sake.

I note also, in the summary of conclusions at the

foot of p.5, that Mr Lonergan expresses an opinion, which he
elaborates later in more detail, that signal C should be
charged with 40 per cent of the costs of SEATS. This is a
proposition which not only was not contended for at the trial;
it has never been accepted, so far as the evidence indicates,
in any financial budgeting or accounts of the respondents. It
seems to me to be an untenable proposition.

Section 3 of the report, which runs from para.13 to

para.38, has the heading: "Basis of Determining Cost". This
is a theoretical exposition of various methods of assessing
costs. It does not take the matter any distance. The section
merely explains what Mr Lonergan means by various terms which

he uses elsewhere in his report. The section is not

objectionable; but, unless some later material whlch is
related to this particular case is to be admitted, it is of no

value.

Section 4 of the report is headed:  "The Australian

Stock Exchange". It sets out some historical information which is informative and interesting, in that it details the way in which information was given to the public regarding trading in the days before computers. Unsurprislngly, the section shows that stock exchanges existed long before there were on-line computers. That alone calls in question the notion of the provision of on-line information being a "main product" of a stock exchange.

The sectlon also deals with the computer system

operated by ASX. I think that most of the information that is

there set out was given at the trial. Much of it is
reproduced in my reasons for ludgment. In itself section 4

does not add very much to the matter. Llke the theoretical

disquisition, its value depends upon the admission of later

material.

The real meat of the report commences in section 5, which runs from para.85 to para.184.	Thls section is headed:
"Cost of Signal C".	In that section, Mr Lonergan attempts to

calculate the cost of signal C, assessed on a "stand-alone"

basis. Mr Lonergan's approach is dlctated by hls premlse that

slgnal C is a "main product" of the exchange which would be
produced independently of any other activity. He treats the

other computer facilities of the exchange as being subsidiary

to signal C. Hls reason is that slgnal C is a real tlme

service; whereas the other slgnals are not real tlme, or are
not necessarily required to be real time. Because of the fact
that signal C is real time it becomes the dominant service in
Mr Lonergan's approach, and everything else is a by product to
it. No attempt is made to allocate comparative importance by
reference to the functions of the various signals. Mr
Lonergan makes only small discounts from the cost of the total
computer system to cover elements of those other signals. Mr
Lonergan's approach is not justified by the evidence. As I
have said, the trial was conducted on the basis that,
regardless of signal C, ASX would operate a computer system.
In other words, if slgnal C closed down today there would
remain a need for a computer system for the satisfaction of
the other functions of the exchange. The question of the cost
of signal C has to be approached by reference to that

underlying fact. The relevant cost is the extra cost whlch is

lncurred by ASX because of the need to supply real tlme
Information to the subscribers to signal C. Mr Lonergan
recognised that the determination of cost by reference to that
requirement was a possible approach. He described it as a
"marginal cost" approach. But he rejected it, in effect,

because he found it too difficult to assess the extra cost.

Mr Lonergan said that it would be "extremely difficult, if not

impossible," to calculate the marglnal cost of signal C if it
is assumed that, independently of signal C, there would be
computer facilities including signals A, B, D and E.

I can understand Mr Lonergan's dlfflculty. But lt 1s

illogical to take a basis whlch is not supported by the
evidence simply because, in the view of the assessor, that is
a feasible or easier task. The underlying premise of section

5 of the report is contrary to the basis upon which the trlal

was conducted. It is certainly contrary to the evidence which was given on behalf of the respondents at the trial. I do not think that I should allow the respondents, in effect, to

re-open their case on such a fundamental matter as this.
Also, I am extremely doubtful whether it would be possible for
the respondents to persuade the Court that signal C stands
alone, in the sense that it would be supplied even if all
other computer functions were closed down. In these days of
increasing use of computers, it is to my mind inconceivable
that the Stock Exchange would abandon its other signals. Nr

Lonergan's approach really assumes that possibility.

Section 6 of the report is headed:  "Cost Plus".

That sectlon must be read wlth the following section 7, which is called: "Considerations in Determinlng Price". Section 7 is, in effect, a continuation of section 6. In his report, Nr

Lonergan himself conceded that the methodology whlch he used

in these sections was deficient. I agree with that

concession; not least because his exercise takes the costs
shown in section 5, which I have already described as being
based on a false premise, and then simply adds a mark-up
percentage. Obviously, if the basic cost is flawed, a cost
plus approach based upon that cost is equally flawed.

Section 8 of the report is headed: "Historical

Dealings". In that sectlon there are three parts. The first

of them refers to the revenue which has in fact been earned by
ASX from the supply of signal C from 1982 to 1989. This part
does not arrive at a cost of supplying slgnal C; indeed, it is
difficult to see how it could. What Mr Lonergan seems to be
attempting to demonstrate is that there have been progressive
increases in the charges made by ASX to subscribers of signal
C, notwithstanding which the number of subscribers has

continued to increase.

In support of this approach counsel for the

respondents submit that a price charged by a monopolist may be
regarded as fair wherever it appears that people are prepared
to pay that prlce rather than go without. I have dlfflculty
with that proposition. It seems to me that one can only look
at the actual level of prices charged by a monopolist, for the
purpose of determining what would be a fair price in a
competltlve situation, if those prices are justified in some

other way; as, for example, by reference to the cost of

production with the degree of mark-up which would be charged
In a competltlve situation. One cannot just~flably	have

regard to prices extracted from customers by a monopolist, by arguing that the price is fair because they have preferred to take the service rather than go without. People sometimes

submit to unfair demands rather than do without a particular
product or service.

I referred to three parts of this section. What I

have said refers to each of them. The three parts arlse
because Mr Lonergan has looked separately at the annual
subscription fee, the monthly charges and the unrestricted
license fee.

Turning to section 9 of the report, which is headed

"Comparable Uncontrolled Price Method", there is material
referring, firstly, to prices charged by overseas exchanges,
secondly, prices charged by information vendors in Australia,
notably AAP, and prices charged for other services, that is
the supply of electronic information outside the stock
exchange area.

To look at prices charged by overseas stock exchanges

for comparable servlces may be one method of obtaining some guidance as to what would be a fair price for the supply of

signal C in Australia. The utility of those prices must

depend, firstly, upon whether the overseas stock exchanges are

themselves in a monopolistic position, so that their prices

would be affected by the same considerations as are ASX's	prices; and, secondly, the comparability of the services
provided.

There was some materlal tendered in regard to

overseas prices at the trlal. It was tendered by the
applicant, and in particular in the affidavit evldence of Mr
Moore. That evidence tended to suggest that, conslder~ng what
one got for the subscrlptlon fee, the charges made by overseas

exchanges were much less than those of ASX. This evidence

was not challenged at the trial, possibly because the
respondents concentrated thelr attention upon other aspects of
the case. The material w h ~ c h Mr Lonergan has put in his
report tends to concentrate upon the charges themselves,
without any reference to the nature or extent of the services
supplied. One obvious matter is that, in each of the selected
overseas exchanges, namely the New York Stock Exchange and the
International Stock Exchange in London, there 1s a much
greater volume of end user terminals. Another, according to
Mr Moore's affidavit, is that both the number of stocks quoted
on those exchanges, as to which information would be available
on the comparable service, and the volume of transactions is

very much greater than in Australia.

I have given some consideration to the questlon

whether I should allow the respondents to re-open thelr case

so as to put before the Court material upon these matters.

Such material would have to go well beyond what Mr Lonergan
has included in h ~ s	report, if it were to enable some

assessment to be made as to whether the two overseas stock

exchanges are affected by monopoly prlclng and, if not, some

comparison of their services.

Although I am anxious to find some way of flxing a

price which has a basis in evidence, I have come to the
conclusion that I ought not to allow thls course to be taken.
If that course were taken, both parties would have to engage
upon a major inquiry as to the manner in which those two
overseas exchanges operate, with reference to the nature of
the services supplied to subscribers of the equivalent of
signal C, the volume of transactions, thelr costing structures
and the like. This would be an inquiry which would much
exceed, in terms of length and cost, the litigation which has
already occurred between these parties. And, at the end of
the day, there would be no guarantee that the Court would find
the result applicable to the Australlan sltuatlon. Pursuant
to an undertaking given at about the time this proceeding
commenced, the applicant has been paying into a bank account

jointly controlled by the parties the charges which it would

otherwise have paid pursuant to its agreements with ASX. It
is true that it could be a term of any indulgence given to the
respondent that this practice cease, and that the money in the
joint bank account be refunded to the applicant. Indeed,

counsel for the respondents has offered to consent to such a

condition. But, even taklng that into account, I do not thlnk

that I would be justified in allowing such a major re-openlng
of the respondentsr case as would be involved in investigating
the applicability of overseas prlces. It is relevant to

remember that the direction that I made referred to evidence

as to the costs lnvolved in supplying signal C. I had in mind

particularly the suggestion of Nr Marshman that some work was
being done on that question. What would be involved in
looking at the overseas exchanges is a consideration of the
prices belng charged in those places, and then a consideration
of whether the application of those prices to signal C would
be a fair thing. Consequently, what is now being suggested
goes well beyond even the leave reserved in February. Glven
what is involved in undertaking that course, I think that, as
a matter of discretion, I should refuse to embark upon such an
~nquiry. This means that the part of section 9 dealing with
overseas exchanges should be rejected.

The part of sectlon 9 which deals wlth information

vendors is, in my opinion, of no assistance whatever. It simply establishes, as one would expect, that information vendors, such as Pont Data, pass on their costs to the end

users.

Reference is then made to other services, with

particular mention of M P . However, one cannot place any

reliance on the AAP prices, if only because, in relation to

three stock exchanges, AAP is in the posltion of a monopolist,
as a result of its arrangements wlth ASX.	In short, taking

the view I do about re-opening the case to permlt evldence as
to prlces in overseas exchanges, the whole of section 9 should
be relected.

Section 10 is headed: "Resale Price Ninus". This 1s simply an exercise by Mr Lonergan to demonstrate how the price which he has arrived at in section 5 might be justified. It

1s not an attempt to work out costs.

In the end result, I am of the opinion that no useful

material relevant to the matter which I left open on 9
February emerges from Mr Lonergan's report. Accordingly, I
reject the tender of that document.

This leaves the question of what course should now be

taken. Counsel for the respondents indicated that, if I
rejected thls report, then, notwithstanding Mr Lonergants
pessimism about ever working out a flgure on a marginal cost
basls, their clients would appreciate a further opportunity to
attempt that task.

Having regard to the fact that three months has now

elapsed, during whlch this task was supposed to be undertaken, and their own expert's conclusion that this feat is "extremely difficult, if not imposssible," this was a bold submission.

Predictably, it was opposed on behalf of the applicant.

However, counsel for the applicant did make a suggestion whlch has some appeal to me. He pointed out that it would be possible to make final orders in the matter, but to reserve leave to the respondents, if they so wlsh, to make an

application for a varlatlon of these orders. He had in mind,

consistently with the approach taken by his client at the
trlal, that the orders made by the Court should require supply
at a nominal prlce; a fee of $100 per annum was mentioned.
However, counsel suggested that the Court permit the
respondents to make application for a variation of this
figure; elther by increasing the amount of the annual fee or
by restructuring the fee in some way by reference to monthly
amounts or fees for service, if the respondents felt able to
demonstrate that they did in fact incur a cost in supplying

signal C over and above the costs which they would otherwise
incur and the proceeds of a nominal charge.

It seems to me that there is much common sense in

taking that approach, not least because there may be a
challenge to my flndings on the matters of liablllty dealt
with on 9 February. If my findings should be overturned, the
exercise which is envisaged would, in any event, be

unnecessary. Accordingly, I propose to follow that course.

There will be a need for short minutes of order to be

prepared. I propose to stand the matter over for one week and

Invite counsel to brlng in short minutes on that occasion.

I certlfy this and the fourteen
preceding pages to be a true copy of
the Reasons for Judgment of

his Honour Justice Wilcox. n

Associate:

Date :  18 May 1990

APPEARANCES

Counsel for the Applicant:	Mr N A Cotman
Solicitors for the Applicant:	Baker & McKenzie
Counsel for the Respondent:	Mr A R Emmett QC and Mr C P Comans
Sollcitors for the Respondent:	Minter Ellison
Date(s) of hearing:	18 May 1990

cw A n d d

IN THE FEDERAL COURT OF AUSTRALIA )	NO. G485/1989
NEW SOUTH WALES DISTRICT REGISTRY )
GENERAL DIVISION	)
ASX OPERATIONS PTY LIMITED

First Respondent

AUSTRALIAN STOCK EXCHANGE

LIMITED

Second Respondent

ASX OPERATIONS PTY LIMITED

Cross Claimant

PONT DATA AUSTRALIA P=

LIMITED

Cross Respondent

ORDER

JUDGE : wi COX J RECEI\ " ' \;

DATE OF ORDER:  May 31, 1990

13  JUN 1990

WHERE MADE:  Sydney FEDERAL COUR t .-

AUSTRALIA

PRINCIPAL REGISTRY

THE COURT DECLARES:  ,/'

--

l. That by requiring the Applicant to execute or take supply of Signal C pursuant to, and by attempting to give effect to:

(a)	the Signal C Agreement for Dynamically Updating Systems dated September 9, 1988 ("the Dynamic Agreement"),
(b)	the Signal C Agreement for Non Dynamic Systems dated September 9 1988 ("the Non Dynamic Agreement"), and

BAKER & MCKENZIE	DX : 218 Sydney
Solicitors	TEL : [phone]
Level 26	FAX : [phone]
AMP Centre	REF : 4847j/NLM/bcr
50 Bridge Street SYDNEY NSW 2000

(C) the Agreement for Supply of Australian Stock Exchange Information Outslde Australia dated June 13, 1989 ("the Overseas Agreement"),

the Respondents, and each of them have engaged in
conduct in contravention of sections 45, 46 and 49 of
the Trade Practices Act ("the Act").

2.      That by the Agreements referred to in paragraph 1 above, the Respondents attempted to induce the Applicant to engage in conduct in contravention of section 52 of the Act.

3.      Void and of no force or effect such provisions of the Agreements referred to in paragraph 1 above as are not repeated in the Agreement set out in the Schedule hereto.

THE COURT ORDERS THAT:

4.      Pursuant to section 87(1) of the Act, the Agreements referred to in paragraph 1 above be varied to the form set out in the Schedule hereto.

5.      The Respondents and each of them either by themselves or by their respective servants or agents be restrained from offering to supply Signal C to the Applicant upon, or refusing to supply except upon, conditions to the

same or substantially the same effect as those

provisions of the Agreements referred to in paragraph 1
above declared void herein or that:

(a)  provide that subscribers to any service supplied by the Applicant involving the electronic supply of information should enter into an agreement

with the First Respondent,

(b)	require that the Applicant must provide a statement to the First Respondent of the names and addresses of its clients or any of them,
(C)	state or represent that the Applicant is a "carrier" of Signal C,
(a)	state or represent that any service of the Applicant in which information is transmitted to clients of the Applicant partly in dynamic and partly in non dynamic mode is or will be supplied to such clients entirely in dynamic mode,
(e)	state or represent that any client of the Applicant requires a licence from the First Respondent to use information supplied by the Applicant,
(f)	state or represent that either the Applicant or a client of the Applicant would infringe any copyright of the First Respondent or a related corporation by disseminating information originally received from or based upon information received from the First Respondent,
(9)	state or represent that any such information is confidential to the First Respondent or any company related to the First Respondent,
(h)	require the payment of any fee for the keeping or storage of any such information,

(i)      fix a price for the supply by electronic means of stock exchange information either on a wholesale or retail basis for the purpose of:

(i)	damaging or eliminating the Applicant or any actual or potential competitor of the Respondents in the market for the supply by electronic means of stock exchange information,
(ii)	deterring or preventing the Applicant or any actual or potential competitor of the Respondents in the market referred to in (i), or
(iii)	substantially lessening competition in the market referred to in (i),

or which has the effect or likely effect of
substantially lessening competition in the
market referred to in (i).

(j)

make any distinction for the purpose of
calculating fees or charges payable to the First
Respondent between the supply of services by the
Applicant to its clients in dynamic or
non-dynamic mode,

(k)

has the purpose or effect, of substantially lessening competition by restricting the variety or types of services that the applicant may offer to its clients or so restricts for any of the purposes set out in (i) (i) (ii) and (iii) above,

(1)      discriminates as to the price for Signal C to a

manner that it is likely to have the effect of magnitude and in such a systematic or recurring

substantially lessening competition in the
market for the supply by electronic means of
stock exchange information and does not make
only reasonable allowance for differences in the
cost of production sale or distribution of
Signal C resulting from differing places to
which, methods or quantities in which Signal C
is supplied, or so discriminate for any of the
purposes set out in (l) (i) (il) and (111)
above, or which has the effect or likely effect
of substantially lessening competition in the
market referred to in (i) (i).

Pursuant to Section 87 of the Act the First Respondent pay to the Applicant all monies paid by the Applicant pursuant to the provisions of the Agreements other than a sum of $180.50 and interest on such monies at rates prescribed pursuant to the Rules of the Supreme Court of New South Wales.

The amount of loss or damage to which the Applicant may be entitled pursuant to Section 82 of the Act and the amount that the Respondents should be directed to pay to the Applicant pursuant to Section 87(2)(d) of the Act be decided as separate questions.

The Respondents be granted liberty to apply on 14 days notice in the event that they wish to adduce further evidence in relation to the amount (if any) of additional costs incurred in the supply of Signal C to the Applicant and/or the amount of any reasonable profit thereon and make application to vary the Fee referred to in the Agreement set out in the Schedule hereto.

9.      The Applicant be released from the undertakings given to the Court on July 11, 1989.

10.	Judgment be entered for the Cross Respondent on the

First Respondent's cross-claim.

11.     The Respondents pay the Applicant's costs including reserved costs of the application and the cross-claim.

12.     Leave be given to the Respondents to appeal from these orders.

DATE ENTERED:  DISTRICT REGISTRAR

, . ; ."

To :	ASX Operations Pty Limited:
If ASX Operations Pty Limited disobeys any of the orders
referred to in paragraphs 5 and 6 above, ASX Operations Pty Limited will be liable to sequestration of property.
To :	Australian Stock Exchange Limited:
If Australian Stock Exchange Limited disobeys the order referred to in paragraph 5 above, Australian Stock Exchange Limited will be liable to sequestration of property.

THIS AGREEMENT made the 9th day of September 1988 and 13th day of

June 1989 and varled pursuant to order of the Court

BETWEEN	:	ASX OPEUTIONS PTY LIMIFED a Company incorporated In thc State of Vlctorla, having its reglstered oiflce at 351 Coil-ns Street, Melbourne, Vlctocla b e ~ n g a wholly-owoed subsldlary and actlng as the agent of Australlan SLock Exchange Llmlted (herelnafter called 'ASXO')
AND.	PONT DATA AUSTRALIA PTY LIMITED whose address appears in the Schedule herero (herelnafter called 'Pont')
WHEREAS.

A	ASXO has made arrangements for Information (as deflned hereln) to be captured and made avallable for
dissemination by electronic means on a real -clme basis
B	ASXO has agreed to 111ake available to Pont the ASX Signal
upon the terms and conditions ncrelnafter contained

NOW IT IS AGREED AS FOLLOWS:

In this Agreement, unless the context ornerwlse requires.
-	'ASX' means Australian Stock Exchange Limlced, a company lncorporared in the Australlan Capltal Territory, havlng its registered office at Peat Narwlck House, Canberra,
ACT
-	'ASSO' means ASXO Operatlans Pty Llmlred, a company incorporated in Vlctorla, havlng its reglstered offlce at 351 Colllns StreeK, Melbourne, Vlctcria 'ASX Slgnal' means the electronic means used by ASXO to
dlssemlnate the Inforn~atlon on a real tlme basis
'business day' has the same meanlng as pursuant to the ASX Suslness Rules.
'Jnformatlon' means the lnforniatlon relat~ng to the
tradlng operations of the stock markets conducted by ASX or lts subsldlarles and other sources, descrlbed as 'Signal C' In the 'ASS Data Servlce Manual' (as amended from tlme to tlme) and provlded by the ASX Slgnal
'The Fee' means the payment descrlbed as The Fee in the Schedule hereto, as varled from tline to tlme
'PAB Informatlon' means any part of the Inforinatlon whlch lncludes data captured by AAP Informatlon Services Pty Ltd ('AAP') recordlng the tradlng conducted on a tradlng floor of any of the Pertn, Adelalde or Brlsbane subsldlarles of
Australian Stock Exchange Llmlted.
'SFE Informatlon' means any part of the Informatlon whlch lncludes data captured on behalf of Sydney Futures Exchange Llmlted ('SFE') recordlng the tradlng conducted on SFE
transmitted to Pont by ASZO as soon as 1s technically
'real tlme basis' means that the Informatlon is
poss~ble following lts capture ~y ASXO
The terms 'stock marker.' 'stock exchange1, 'securities exchange', 'securltles' and 'exempr stock market' have the same meanlngs as in the Securltles Industry Code,
lnclud~ng any statutory amendment or re-enactment thereof
Words denotlng one gender shall be deemed to Include the other two genders ard vice versa and the slngular shall Include the plural and vice versa
1	Commencement and Termlnatlon
Thls Agreement shall commence on the date lt is executed by ASXO and, sublect to Clause 10, shall contlnue lndeflnltely thereafter subject to.
(a) the r ~ g h t of Pont co tcrmlnate thls Agreement on glvlng prlor wrltten notlc? of not less than one month to the other partles, and,

the rlght of ASXO to termlcate thls Agreement on 30 June in any year oc glvl.?g Ponc prlor wrltten notice of not less th?n three months

2       Supply of Information

2 ( L ) Sublect to thls Agreement, on each buslness day ASXO shall supply the ASX Slgnal on a real tlme basls to Pont untll the termlnatlon of this

Agreement

2 ( 2 )	Pont shall not supply the Informatlon or any part thereof to any other person on terms that would allow that person to do any act or thing that Pont has hereby agreed not to do
2 (3)	Nothlng ln thls Agreement snall be understood as
an abandonment, revocaclon, asslgnmenr or denlal
by ASXO of any copyrlqht or confldentlallty In the ASX Slgnal and the Informatlon that lt may have, ~f any.
3 ( 1 )	Pont shall pay to ASXO tne Fee provlded that such payment shall be made by ?onr only once per annum
on 1 J u l y ( o r p r o - r a i a t o 30 June i f l e s s t h a n one
y e a r ) ASXO may v a r y t h e Fee b u t s h a l l do s o o n l y
on a b a s l s whlch d o e s n o t d l s c r l m l n a t e be tween
Pon t and o t h e r r e c l p l e n t s u n d e r such a g r e e m e n t s

3 ( 2 3 L a t e payments o f any n a t u r e s h a l l a c c r u e l n t e r e s t

a t t h e r a t e wnlch 1 s two p e r centdm ( 2 % ) above t h e

o v e r d r a i t r a t e c h a r g e d bc t h e p r l n c j p a l b a n k e r s t o

ASXO from t l m e t o t l m e on o v e r d r a f t acconunodatlon

exceeding $100,000 00 c a l c u l a i c d w ~ t h d a l l y r es t s

from t h e due d a t e o f cach such payment t o t h e d a t e

of payment

3 ( 3 ) ASXO may g i v e P o n t n o t l c e of v a r l a t l o n of t h e F e e

a t any t-me p r l o r t o 1 May i n any y e a r and s u c h

v a r l a t l o n s h a l l have	e f f e c t on	1 J d l y of	t h a t
y e a r

R e l e a s e and Indemni ty

4 ( 1 ) Save a s 1s otherwise p r o v l d e d h e r e l n ASXO, ~ t s

employees and a g e n t s s h a l l have no o b l l g a t l o n o r

l l a b l l l t y of any k l n d t o o r t h r o u g h Pon t w l t h

r e s p e c t t o t h e t r a n s m l s s l o n of t h e ASX S i g n a l t o

P o n t	o r t h e provision	o f	t h e	I n f o r m a t l o n	o r a n y
p a r t t h e r e o f	a n d ,	w l t h o u t	l l n l t ~ n g	t h e	g e n e r a l i t y

o f t h e foregoing, f o r any d e l a y s , interruptions,

e r r o r s o r om-ss lons howsoever occasioned

(including n e g l l g e n c a ) I n c o l l e c t l n y , recording,

processing, s t o r l n g o r d l s s c m l n a t l n g t h e

I n f o r m a t l o n o r f o r t h e a c c u r a c y t h e r e o f N o t h l n g

I n t h l s p a r a g r a p h s h a l l e x c l u d e , r e s t ~ l c t o r

modl fy any c o n d l t l o n o r w a r r a n t y l m p l l e d i n t h l s

Agreement by law where t o d o s o would r e n d e r t h l s

p a r a g r a p h v o l d

4 ( 2 ) To t h e e x t e n t permitted by l aw, ASXO's l l a h l l l t y

t o Ponz	f o r any	l o s s o r damage	t o P o n t o r a n y
o t h e r p e r s o n	e l t h e r d l r e c t l y o r	l n d l r e c t l y	a r l s l n g

o u t o f l l m l t e d t o e l -cher t h e p e r f o r m a n c e o f t n l s Agreement i s

of t h e f o l l o w i n g a t ASXO's

d l s c r e t l o n

( a ) t h e s u p p l y of t h e AS:< S l g n a l o r t h e

I n f o r n a t l o n a g a l n , o r

( b ) t h e paymcnt o f t h e c o s t o f h a v l n g t h e ASX

S l g n a l o r t h e Information s u p p l l e d a g a l n

4 ( 3 ) P o n t h e r e b y i n d e m n l f l e s nnd a g r e e s t o keep

~ n d e m n l f l e d ASXO a g a l n s t a l l l o s s , a c t l o n s ,

proceedings,	c o s t s ,	c l a l m s and	damages	a r i s l n g
f rom

( a ) any b r e a c h by Pon t respectively of i t s

o b l l g a t l o n s h e r e u n d e r , o r

( b ) r e l l a n c e by t h i r d p a r z l e s on l n f o r m a t l o n

o b t a l n e d t h r o u g h P o n t ' s u t l l l s a t l o n o f t h e

ASX S l g n a l o r t h e Informat1011

5 ( i j P o n t s h a l l p r o v l d e ASXO a n n u a l l y w l t h a

c e r t i f i c a t e s l g n e d hy	a registered	company	a u d l t o r
t o t h e e f f e c t t h a t t h e a u d ~ t o r ,	h a v l n g	made	a l l
d u e and p r o p e r	enquiries,	i s satisfied	t h a t P o n t

h a s compl l ed w l t h l ~ o b l ~ g a t ~ o n s s p u r s u a n t t o t h l s

Agreement a n e , l n g a r t l c u l ? r , i t s o b l l g a t l o n s

r e l a t l n g t o paymen t s , d u r l n g t h e g e r l o d ( h e l n g a

p e r l o d of n o r more t h a n t w e l v e months) c o v e r e d by

t h e a u d l t

6.      Supply of ASX Slgnal to Pont

G ( 1 )	The ASX Slgnal shall be supplled through a llne leased from Telecom by Pont or by such other means as may be agreed upon from tlme to tlme by ASXO and Pont
6 (2)	ASXO shall suppiy the A S X Slgral ;o Pont In accordance wlth normally accepted communlcatlon

practices lncludlng retransmlsslon on request for

the fee charged by ASXO at the tlxe of

retransmlsslon

6 (3)	ASXO may change he transmlsslon speec for the ASX Slgnal provlded it glves reasonaale prlor wrltten notlce thereof to Pont
G ' 1	ASXO may change the format of the ASX Slgnal provlded lt gloes reasonable prlor wrlEten notlce to Pont thereof For the purposes of thls clause only 'reasonable prlor wrlttan notlce' means
(a) where the change results frsm a change in the speclficatlons contsined in the ASX Data Service Manual: nlnety days,
(b) where the change results from a discrepancy

between the ASX Signal and rhe

speclflcatlons contained In the ASX Data

Service bianual th~rty days,

(C) ln any other case such perlod as is

reasonable in the clrcumstences,

p r o v l d e d a l w a y s t h a t ASXO r e s e r v e s t h e r l g h t t o

lmmedla t e ly and w l t h o u t n o t l c e change any a s p e c t

of	t h e ASX	S l g n a l wncre ASX	a d v l s e d	t h e ASXO	t h a t
s u c h	a	change	i s n e c e s s a r y	t o e n s u r e	t h e o r d e r l y

c c n d u c t o f a s t o c k marke t conduc ted ny o r on

b e h a l f o f ASX

7 . S u p p o r t f o r Agreement

7 ( 1 ) P o . ~ t s h a l l a c t a t a l l t l m e s l n a c c o r d a n c e w l t h t h e

l a w f u l l n s t r u c t l o n s o i AS90 p u r s u a n t t o and i n

a c c o r d a n c e w i t h t h l s Agreenenc

T h ~ s Agreement may b e terminated surnmarlly by any p a r t y

g l v l c g t o t h e o t h e r p n r c y ' s n o t i c e i n w r l t l n g of any o f

xhe f o l l o w l n g e v e n r s

( a ) i f t h e o t n e r p a r t y f a l l s t o p e r f o r m o r o b s e r v e , o r

c o n n l t s a b r e a c h o f any p r o v l s l o n o r c o v e n a n t o f

t h l s Agreenen t	and	f a l l s t o c u r e o r remedy	s u c h
b r e a c h	t o t h e r e a s o n a b l e	s a t l s f a c t l o n o f	t h e p a r t y

g l v l n g t h e n o t l c e w l t h l n c e n ( 1 0 ) b u s l n e s s d a y s

f o l l o w l n g t h e g i v l n g t o such p a r r y of w r s t t e n

n o t l c e t h e r e o f ,	b u r	I£	t h e c a u s e of	such b r e a c h	o r
: a l l u r e	t o p e r f o r m	i s a n a c t o f	God,	f l r e o r o t h e r

accident,	s t r l k e ,	m z t e r l a l	s h o r t a ~ e s	o r any o t h e r
c a u s e	c h a t	i s oeyond	t h e c o n t r o l of	t h e defaulting
F a r t y ,	t h e p e r l o d	f o r remedying	sdch b r e a c h	o r

f a ~ l u r e t o p e r f o r m s h a l l b e ex tended by t h e t l m e

o r t l l f ies measured	by	any	such c a u s e o i d e l a y and
L.

Lne d e f a ~ l c l n g p a r t y s h a l l n o t be l l a b l e t o p a y

damages	t o any o t h e r p a r t y resulting	from s u c h
c a u s e ,

~ f a r e s o l d t l o n i s p a s s e d o r p roposed o r a

p e t l t l o n i s p r e s e n t e d o r a n a p p l ~ c a t l o n E l l e d f o r

t h e wlndlng-up	o f	a n o t h e r p a r t y	o r a	r e c e l v e r	i s
appointed	I n r e s p e c t	of	any p r o p e r t y	of	a n o t h e r
p a r t y ,

l f t h e o t h e r p a r t y makes o r p r o p o s e s t o ;lake a n

arranGentent w i t h i t s c r s d l t o r s ,

( d )	I£
r h e management, o t h e r p a r t y 1s p l a c e d u n d e r o f f l c l a l
( e )	l f execution i s l e v l e d on t h e a s s e t s of a n o t h e r
p a r t y and i s n o t s a t l s f l e d w l t h l n t h r e e ( 3 ) d a y s ,

o r

( f ) l f t h e o i h e r p a r t y i s a d l u d l c a t e d b a n k r u p t ,

b u t s o t h a t such t e r m l n a t l o n s h a l l n o t p r e l u d l c e any

r l g h t s o r o a l l g a t l o n s a c c r u e d a t t h e d a t e of t e r m l n a t ~ o n

9 .              Assignment

9 ( 1 ) T h l s Agreement may b e a s s l g n e d by ASXO a t any t l m c

t o an>- p e r s o n c a p a b l e of f u l f l l l l n g ASXO's

obligations p u r s u a n t h e r e t o and such assignment

s h a l l be lmrnedla te ly effective beiween t h e p a r t l e s

upor w r l t t e n not i . ce t h e r e o f b e l n g given by ASXO t o

P o n t . The A s s l g n e e s h a l l assume a l l t h e r l g h t s

dnd o b l l g a t l o n s o f ASXO p u r s u a n t h e r e t o a t t h e

& a t 5 of s u c h a s s i g n m e n t and Pont s h a l l e x e c u t e and

s l g n a l l s u c h d e e d s and documects a s may b e

r s e s o n a b l y	r e q u l r e d	by	t h e Ass lgnec	i n t h l s
r e g a r d

9 . i 2 i E e l t h e r t n i s Agreement n o r any of t h e r i g h t s o r

c b l i q a t l o n s h e r e u n d e r may be a s s l g n e d by P o n t

w ~ t h o u t t h e prior w r ~ t t e n c o n s e n t of ASXO whlch

? s n s e o t snaL1 n o t b e dc rcasonab 1.y : ~ ~ c h h e l d .

10.     Complete Agreement

10 ( 1 ) Thls agreement constitutes the complete agreement

between the partles hereto and cancels and
supersedes all prlor agreemenrs between the
partles, and, save for any condltlnn or warranty
lmplled in thls Agreement by law, rhere are no
other or further agreements or warranties elther

In wrltlng or verbal relatlng to tnls contract

whlch are blnd~ng upon a parry hereto

10 (2) The fallure of a party to enforce at any tlme any

provlslon or provlslons of rhls Agreement shall
not be deemed to be a walver of such provision or
of the rlghr of che sal6 parcy thereafter to
enforce eacll and every provlzlon

10 (3) No letter, telegram, telex or other written

communlcatlon passlng Dcrween the partles hereto
shall become part of, or ln any way modlfy or
change thls Agreement unless lc 1s expressly
stated that the sald wrltlng is to constitute a
rider to or a modlflcatlon of thls Agreement and
1s slgned by an authorised officer of the partles

hereto.

11. Severability

Should any provlslon of thls Agreement be held lnvalld or unenforceable by a court of competent ]ur1sd1ct1on, the remainder of t h ~ s Agreement and the appllcatlon thereof shall not be affected chereby and shall coatlnue valld and enforceable to t h e fullest extent permitted by 1-aw

'1 notlces shall be sent by ordlnary n a ~ l to rhe address '

of a party speclixed 111 the Schedule hereto or hy telex,
telegram, facsimile or dellvered personally at such
address unless wrltten notlce shall have been glven of any
change of address and chen notlces shall be sent or

dellvered to such changed address Notlces malled shall

be deemed to have been recelved by the party to whom they have been addressed three buslness days efcer rhe date of postlng

13.     Disputes and Proper Law

13 ( 1 ) Thls Agreelitent is made in and shall be governed
by, construed and take effect in accordance wlth
the laws or New South Wales

13 (2) IT any questlon or difference whatsoever shall
arlse between the partles hereto touchlng thls

Agreement or ine construct~on, meanlng, operation

or effect of any provlslon thereof or as to the
rights, d~lcies or liabllltles of che partles
hereunder then 7 - n every such case the partles
shall subrnlc to xhe non-exclusive lurlsdlctlon of
the courts 01 New South Nales

14.     Transaction Costs

Eacn party shall be responsible for its own costs of and

Incldental to the preparation and execution of this

Agreement, e:icept that Ponc shall pay any scamp duty

payable on or ln coi~necclon wlth thls Ag- Leemenc

15.     PAB and SFE Daxa

15 ( 1 ) If Pont wlsnes to recelva PAB Information from
ASXO it mllst, as a condltlon of such recelpt,
obtaln a conscnt slgncd on behalf of AAP which
does not conthin any provlslons whlch are
unncceptable to ASZO and advise A S S O lmmedlately

such consent :S -41 thdrawn

15 (2) If Pont wlshes to recelva SFE Informatlon from

ASXO it must, as a condltlon of such recelpt, obtaln a consent slgned on behalf of SFE whlch does not contaln any provlslons whlch are unacceptable to ASXO and advise ASXO lrnmedlately such consent 1s withdrawn

15 (3) PAB Tnformatlon and SFC Informatlon 1s supplled

subject to both thls Agreement and any condltlons
imposed by 4AP or SFE respectively whlch are not
repugnant to thls Agreement

15 (4) No adjustment shall be made to any obllgatlon of Pont under this Agreement in the event that Pont ss dlsentltled from recelvlng PAB Informatlon or

SFE Informatlon for any reason

16.    Non-Dlscriminarion

ASXO shall use lts bes:  endeavours to ensure that lt does

not dlscrlmlnate in any materlal way agalnst Pont

vls-a-vls other recl2lents (~ncluJlng any subsidiary or

dlvlslon of ASX or ary company or entlty in whlch ASX 1s

dlrectly or ~ndlrectly  interested) supplying the ASX

Slgnal and, wlthout llmltlng the generall~y of the

foregoing, speclflcally In relation to

(a 1 the tlme at dhlch the RSX Slgnal 1s supplled to Pont,

(h) consistency in the Cormar of the ASX Signal

supplled to Pont, and

( C varlatlons in the Fee

EXECUTED by the partles the day and year herelnbefore wrltten

SIGNED for and on behalf of	1
ASX OPERATIONS PTY LIMITED	)
~n the presence of	)
SIGNED for and on behalf of	l
PONT DATA AUSTiWLIA PTY
LIMITED i n the presence of	1

Slcjnature

. .

Witness BLOCK LETTERS

SCHEDULE

1 . PONT DATA AUSTRALIA PTY L I M I T E D

A d d r e s s :	1 5 t h F l o o r
5 6 P ~ t t  S t r e e i z
SYDNEY  NSW 2 0 0 0

2 . THE F 3 E :

( 1 1 ) PAB and/or S F E d a t a $ 3 , 0 0 0 0 0 p e r annurn

( 1 1 1 ) Establishment F e e

( n e w R e c l p l e n t s ) $ 1 , 5 0 0 0 0 once on ly

3 .	ASXO ADDRESS:	T h e Manager
Marker Information S e r v l c e s
ASX Operations P t y L t d
20 B o n d S t r e e t
SPDNCP NSW 2 0 0 0

. ,

,:  b. l, ~

, i.., , '.
L,! , , , , ,

I., ' . ' ,,. , .

1 , L," .

. ,,	2 , ..	, . L	.
.!,	i',..	#,' . , ,>L,	,

DATED

ASX OPERATIONS ?TY LIbiITZD

of t h e f ~ r s t p a r t

- and -

PONT DATA AiJSTRALIA PTY LIMITED

of t h e second p a r t

SIGNAL 'C' AGREEMENT

MINTER ELLISON

S o l l c l t o r s

66 P l t r Street

S Y D N E Y N S W 7000

DX 1 1 7 S Y D N E Y

Telephone	( 0 2 )	2 2 5	G 9 9 9
F z c s l n l l e	(021	2 3 5	2 -11 !

Reference NJOB 'KLM0!440? .