An Albury business man and his associates have lost a last-ditch attempt in an epic 18-year legal battle to have a $70 million judgement against them set aside.
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But the decision, handed down this week in the ACT Supreme Court, has opened the door for the group to take its fight against the Commonwealth to the country's highest court, and Allan Endresz has vowed to take it there.
The case concerned two sums of money totalling about $8.7 million which was paid by the Commonwealth back in 1998 to two companies connected to Mr Endresz and his family, and other individuals. The money was then variously distributed to people and companies.
In January 1999, the Commonwealth launched a civil case claiming the two payments were improperly made. The funds were frozen, and the investors launched a $4.3 billion counter claim, effectively for lost revenue and opportunity.
The investors subsequently lost the case. On November 21, 2014 Justice Richard Refshauge of the ACT Supreme Court ordered the 13 defendants pay more than $70 million to the Commonwealth in compensation.
There was an appeal, but it was dismissed in 2016.
That would usually be the end of the matter, pending an appeal to the High Court, but, after the appeal ruling, the defendants applied for Justice Refshauge to set aside his judgement and orders, a remedy often associated with cases where there has been denial of natural justice.
In this case, natural justice, a fundamental value underpinning civil litigation, was about a person's right to fully know the case against them and participate in proceedings, before proceedings could bind them.
As the case progressed, the Commonwealth had made multiple changes to its originating application - the start of a civil case - in the form of amended statements of claim. These included adding further defendants, and further causes of actions - or legal reasons for the suit.
A key question in the case was whether a failure of the Commonwealth to properly amend the originating application to include those changes made the proceedings null and void, so that the resulting judgment against those defendants had to be set aside.
"In my view, there is no occasion here to set aside the proceedings or require an amendment," Justice Refshauge said in his latest judgement. "The [defendants] knew exactly the case they were facing and participated fully, including to the extent of filing and prosecuting a counter-claim which would have been also an irregularity were [the original] to have been set aside."
This week, Mr Endresz, who was a director of one of the two companies that received the original Commonwealth payments, told Fairfax Media they would be filing an appeal in the High Court within 10 days.
But the investors - who are legally unrepresented - were also counting some wins in the latest decision. Mr Endresz said the judge had found the Commonwealth never changed the originating application to include the new defendants and new causes of action.
"We are excited that [the judge] found there was a stuff up by the Commonwealth on the originating application," Mr Endresz said this week. "If we prove that they couldn't have fixed it, that's a big thing for us. They know we're coming."
