ACT News

Sixteen year, $4.3 billion legal battle to be revived

The ruling of Justice Richard Refshauge is facing appeal.
The ruling of Justice Richard Refshauge is facing appeal. Photo: Rohan Thomson

A $4.3 billion dollar claim against the Commonwealth is set to be revived in the Canberra courts.

A group of Albury-based businesspeople, adjudged to owe the Commonwealth $70 million, have filed appeal papers with the ACT Court of Appeal.

In November, the ACT Supreme Court ended a 16-year legal stoush when it ordered the group to pay the federal government compensation, including $70 million, property, and assets.

The order meant some of the group would be forced from their homes.

A number had already been declared bankrupt mid-year.

But the group's lawyers have appealed that decision, ensuring another chapter of the already marathon case. 


The unauthorised transfer of about $8.72 million of taxpayers' money – which was then reinvested – to companies linked to Davis Samuel Corporate Advisory Services in 1998 sparked the legal battle.

A criminal prosecution of 26 Davis Samuel investors then failed and the group responded with a $4.3 billion civil claim against the Commonwealth, claiming they lost that amount when they could not pioneer a capital-raising plan in Australia.

The complex tangle of claims and counter-claims were heard in the ACT Supreme Court in 2008.

It took Justice Richard Refshauge five-years to strike out the billion dollar claim, finding in 2013 that the original $8.725 million payment had been void and illegal.

More than a year later, the judge ordered 13 of the defendants to pay the Commonwealth almost $70 million in compensation.

Documents, lodged with the court last month, listed 88 grounds of appeal against the Supreme Court decision.

The grounds said the five-year timeframe had affected the decision, the orders were not supported by evidence, the decision had been a miscarriage of justice, the judge erred in ruling some defence affidavits inadmissible, and the judge failed to conduct himself in manner fair to all parties.

The grounds also claim the Commonwealth had been at fault for the unauthorised transfers and had no claim against the businesspeople.

The appeal sought 12 orders, including that Justice Refshauge's orders be set aside, judgment be entered for the businesspeople, and costs ordered against the Commonwealth.

It also asked the court to calculate the damage suffered by the businesspeople.

Litigant Allan Endresz described the appeal as "a watershed moment" for a group that had been pursued for 16-years.

"The shackles of Justice Refshauge have been broken [and] the appellants are now free to vigorously pursue the $4.3 billion damages claim on their own terms," Mr Endresz said.

"Words cannot express the appellants elation when the notice of appeal was filed.

"No matter how many cases or how long it takes, the appellants will drag the Commonwealth kicking and screaming through the entire appeal process until Justice Refshauge's judgment has been overturned."

He said the "moment of truth" had arrived for the Commonwealth.

"For the appellants, there is absolutely no further downside. 

"For the Commonwealth, there is only a legal minefield exposing an exponential growth in unrecoverable legal costs and damages.

"For taxpayers, there is a heightened realisation that Parliament has been cajoled into appropriating funds for an ill-conceived case to hide the abhorrent administrative and financial incompetence of the Commonwealth."

Treasury listed the case as a financial risk for the federal government for about four years – including as "quantifiable" for a short-time in an acknowledgement there had a chance of a financial loss.

But the financial threat now appears as "removed" in documents.

It is unknown if the fresh action will prompt Treasury  to relist the risk.