Article 4 in a series of 5 Articles
There was chaos in Queensland airports during the last week of January 2013 as Cyclone Oswald lashed the east coast of Australia from Cairns in the north to Tweed Heads in northern New South Wales. John and I were on the last plane out of Rockhampton before the airport closed. Arriving in Brisbane we were met by frantic scenes in that airport as people scrambled for flights in every direction out of Brisbane. I managed to get the last seat on a plane to Adelaide, where our Court Case was to be heard. John arrived close to midnight on another flight, without his luggage. It seemed a spectral omen that just as his taxi arrived at our accommodation the fire alarm sounded and the hotel evacuated as two fire trucks with sirens blaring descended upon the building. That (false) alarm ensured we would never forget our entry into the city where our destiny would be determined in the Hall of Justice.
You could be forgiven for thinking John and I were off for a holiday!
We were in fact setting out on the most important mission in our lives.
We arrived a day before the court case and for the first time met in person our barrister. For ease we will call him Tom. Seeking to forget the spectral omen of the previous night, we were nonetheless a little alarmed at our predicament. Tom soon put us at ease and seemed confident the case would not take up the 12 days assigned to it. As it happened we only spent two days in court. But that was not the end of the matter.
It is now more than seven years since the court case and while the headlines remained clear in my mind as I began to write, a good amount of the detail was hidden in the memory cobwebs. For that reason, I have refreshed by memory by re-reading the full transcript of the case, which is a public document. It seemed the case had but begun when it came to a halt, much to our chagrin.
On the first day in court, two singular items emerged through the testimony and questioning of the leading witness of Elders Financial Planning (EFP).
The first item concerned the way EFP presented our projected cashflow in July 2007 to assuage our concerns about the economic viability of a franchise contract. This was to us the evidence of misleading and deceptive conduct that drew us into the contract with projections of income that were never to be realized.
The second item concerned the removal of John’s Advisor license in May 2012. Not only the fact of removal but in particular the way it was done and the reason it was done. EFP presented the issue purely as an outcome of compliance failure, emphasising it was never a matter raised with the EFP Board. However, documents were presented which showed the matter was indeed raised at the Board level; John’s dismissal was not a consequence of compliance but a political act. The court had been lied to and John’s income was unlawfully taken from him.
On the second morning we eagerly awaited the highlighting of numerous other issues to the court. We also awaited our turn in the witness box, the opportunity to declare our story in the Hall of Justice.
Neither happened. Following lengthy discussion with the barristers, the Judge instructed them to formulate a settlement instead of proceeding with the court hearings. To this day I carry some sense of never really having “our day in court”. At least a full hearing in court. However, Tom spoke from another perspective. We could well win this battle, he informed us, indicating the Judge was very clear about the ramifications of evidence on the previous day. However, we might well lose the war. Meaning, if the court heard in our favour EFP could well appeal the case which would take a much longer time with many more witnesses called and a great lapse in time. By which time we would be bankrupt. We would have no business. We would be finished.
What followed was days in Adelaide in bitter bargaining followed by weeks back in Rockhampton waiting for EFP to “come good” with the financial settlement.. In a moment of utter frustration John and I held this short conversation:
“We will go back to court!”
“We can’t because we did not have the money for the fare.”
“Well, we will walk there”
“We will need two pairs of shoes and we don’t have the money for that either”
Then we carried on the task of rebuilding our business.
The winner does not always take it all.
