Being motivated by a deep sense of injustice can be a costly thing. Just ask John Viscariello.
The retailer-turned-lawyer lost his business to the insolvency profession – we use the word profession loosely – in 2001. After 10 years in the courts he finally won a judgment against his liquidator and their lawyers in an action for improper conduct.
The “professionals” racked up half a million dollars in costs chasing a debt of just $28,000; and that was early in the piece. The debt – for some bed linen – was owed to Viscariello’s company by his girlfriend Tanya Hamilton-Smith. The liquidator, Peter Macks, then from PPB, and his lawyers Minter Ellison, went after her too. Macks even secretly funded one of her friends, a Heidi George, to sue her when attempts to bankrupt Hamilton-Smith failed.
The campaign for justice came at an immense personal cost. Viscariello was forced to sell his house. He suffered an irretrievable relationship breakdown and finally, was stripped of his licence to practise law. The worst thing though, he says, was the damage to his reputation.
Having aimed squarely at the big end of town, the big end of town took aim at him. Instead of responding to his complaints of improper conduct, the state’s legal conduct board responded with a cannonade of “own motions” – they went after him that is – and they finally had him struck off.
When asked this week, in the wake of the damning judgment from Chief Justice Chris Kourakis, if he would do it all again, Viscariello had this to say:
“I was born, and this is who I am. I couldn’t stand by and let these guys get away with it; using their position. This is the price I’ve had to pay”.
Taking on the bully
It is a singular privilege of this job that you get to meet people at their highest point, and at their lowest. You meet the fighters; those who – whether motivated by principle, profit, survival or revenge – take on the system. They don’t often win, in a conventional sense that is.
Peter Bunn was one. Bunn owned a couple of small supermarkets and fell into dispute with the big wholesaler Metcash. Five years, millions of dollars, a broken marriage, more than 60 separate hearings in the Federal Court, 130 affidavits and 20 notices of motion later, we asked Bunn if it had all been worthwhile.
What had begun as a simple breach of contract case had descended into tortuous litigation about silencing dissent as Metcash tried to muzzle the retailer. Metcash finally backed off but it was a pyrrhic victory. Bunn never got the company to “justify its actions and conduct at trial”.
Was it worth it though, the fight? Bunn paused for a moment, grinned and said, “I’d do it all again”.
He had no choice, he said, but to stand up to the bully. Others say the same. Will Matthews, an actuary from Melbourne, has fought a Freedom of Information request for 11 years along with Sydney academic Jeff Knapp. A request to get public information from a publicly funded institution has engulfed lawyers from banks, regulators and goldmining giants, expended millions of dollars in taxpayer funds and it persists to this day.
“It’s irritating when you see these people winning all the time using other people’s money,” says Matthews. “But if you are just going to roll over and take it all the time, you have to ask yourself, what is life about?
“If everybody rolled over and took it, imagine what sort of world we would be living in”.
Banking on humour
Another to relish the battle is farmer and now gold explorer Brian Locke who took on Macquarie Bank when the bank unscrupulously gained control of his irrigation project.
Locke soon realised he could not match a bank in the court system and ran a dual strategy of shareholder activism, turning up at annual meetings and firing questions at the board. Eventually they settled. Now Locke has locked horns with goldmining giant Newcrest in the courts claiming irregularities in their pegging leases over the Cadia Valley project.
Although vastly different personality types, they seem united by one factor, a sense of humour. Rob Porter, a former chief executive of insurer OAMPS, has no regrets over his five-year battle with the corporate regulator that cost him his career.
“The odds are stacked against you. It changes your life forever but it brings something to your character,” says Porter. “They can take everything, as long as they don’t take your sense of humour”.
Before going up for cross-examination, he told his QC the fabled Peter Hayes, “I can assure you, I will be telling the truth”.
Hayes countered, “That’s what worries me. I can assure you, you will be the only one”.
Porter’s associate John Maconochie – the man who sued National Australia Bank for $50 billion claiming they stole his technology business – similarly enjoyed the ride.
A US hedge fund now owns the action but in order to get it back into court somebody has to stump up $80 million in costs. The rumour is that Maconochie was offered $100 million to settle but spurned it and demanded $500 million. He is reportedly still in good humour.
It doesn’t always end well though. Another battler, who shall remain unnamed (we did never manage to get his story in the papers), took on one of the big four banks alleging bribes to top bankers in return for large commercial property loans.
He lost the lot. And we have lost track of him now but will never forget one story.
He was arrested by police for drunk and disorderly behaviour. He tried to hang himself with a police blanket in the holding cell. He broke the blanket. The next day the police charged him for it.