Mere slap on the wrist for ICAC Five

by | Aug 1, 2013 | Business

Named: John Kinghorn, a former investor in Cascade Coal arriving at the ICAC hearing last December. Photo: Chris Fowler

In public, they are brimming with fury and indignation at the Independent Commission Against Corruption. To a man, they all cry they have done nothing wrong.

Yet privately, the Sydney businessmen hit with corrupt conduct findings by ICAC – Travers Duncan, John McGuigan, John Kinghorn, Richard Poole and John Atkinson – must be ruing the day they ever did business with Eddie Obeid.

Were it not for the poisonous Obeid, the light may never have shone their way. They could even have been another $60 million richer, apiece, reputations intact. Instead, the sale of their Cascade coal licence for $500 million has been scotched. It had cost them just $1 million.

Named: John McGuigan, a director of Cascade Coal, leaves an ICAC hearing.

And worse, even worse than the fact that they still owe Eddie Obeid $30 million under the deal they struck to get him out of Cascade, their reputations are in shreds.

This week however, the week in which ICAC handed down its feverishly anticipated report on corruption in NSW, will be their nadir. This is as bad as it gets. They will remain rich. Their punishment will be the shame of it all. And perhaps some wrist-slapping civil penalty – more on that later.

It is unlikely that any of the five will ever spend a day behind bars. Each has the financial muscle to appeal, contest and counter-claim in the court system for years. Already, as their crisis management PR people spin their claims to be victims rather than perpetrators, each has called into question ICAC’s powers and procedures.

Named: Businessman Travers Duncan arrives to give evidence into the Independent Commission Against Corruption last December 7. Photo: Mick Tsikas

Even procedural challenges, mere red herrings, could tie up the DPP or any regulator contemplating a prosecution for years. The regulators, the Australian Securities and Investments Commission (ASIC) to whom the cases have been referred by ICAC, know this only too well.

Although the public outcry for prosecution against the Obeids and Ian Macdonald should ensure there is action in the courts, and hopefully jail-time, the greatest achievement of ICAC may well be that it has, to a small degree at least, satiated the public’s lust for white-collar blood.

It is a matter of public frustration that, despite the dozens of billions of dollars lost and stolen since the financial crisis, very few, if any, high-profile heads have rolled for it.

In one celebrated collapse, that of the Centro property group, the directors were found to have breached the law but got off scot-free after the Federal Court’s Justice John Middleton ruled that the shame of it was punishment enough.

Andrew Scott, the chief executive who presided over the crash and the $5 billion destruction of wealth, was fined $30,000, the equivalent of 1.05 per cent of his cash pay for 2007, the year when Centro blew up.

With this kind of precedent in the courts – and this for a successful prosecution no less – there is little incentive for regulators to spend millions in pursuing the ICAC Famous Five … even if the right noises are made to begin with.

Travers Duncan and John Kinghorn between them are worth more than a half a billion dollars apiece. The canny Kinghorn, founder of the defunct Allco Finance Group, also sold RAMS home loan business to the sharemarket in 2007. The float went public just days before the meltdown in world credit markets and Kinghorn deposited a cool $650 million in proceeds just days later.

Travers Duncan made half a billion dollars cash when he sold his interest in a coalmine to the Chinese in 2009.

The other three also enjoy the resources to withstand prosecution. John McGuigan is a former executive chairman of Baker & McKenzie, globally. He introduced Krispy Crème donuts to Australia. John Atkinson is also a former partner of Baker & McKenzie and has substantial business interests.

The youngest, and perhaps the ‘poorest’ of the five is investment banker Richard Poole. Poole is also likely to be able to fund a legal defence for years.

But right now, it is the hour of the moral defence. For his part, Richard Poole can rely on the “I’m just the banker” line of excuse for his involvement. And as the youngest, he will need to work, and perhaps, as a banker, can continue to make a living doing deals, even if behind the scenes.

For the others, the prospects for reputational rehabilitation are slim. If they are prosecuted for fraud or other criminal misconduct, and opt to fight it rather than cop a plea, their disgrace will drag on.

This is by no means the end of their business life though. They still have business interests to operate and protect. The have money, and will continue to invest it, even to do private deals – as consultants if they lose their rights to act as company directors.

But it may well be the end of their public business life.

This brings us to the civil ramifications. Until now, we have canvassed the prospect of criminal prosecution, which in this writer’s view would be defended belligerently and may not be even undertaken.

It is a different matter however on the civil penalties front. All of the men are company officers and directors. This is how they have made their livelihoods and it is the right to company office which is definitely on the line.

But even if their right to company office is taken away they can still use proxies and the role of consultant and so forth to manager their business interests.

There is likely to be action on the civil front. Reason being that, in civil proceedings a court merely has to find against the accused ”on the basis of probability” whereas, in criminal proceedings – which entail jail-time – a court has to find against the accused ”beyond reasonable doubt”. The standard of proof is far higher.

The Australian Shareholders’ Association has just called for a restructuring of the board of White Energy and for Travers Duncan and John Kinghorn to stand down from the board.

ICAC referred White Energy chairman Travers Duncan to the DPP to consider charges of fraud and breach of directors’ duties, and non-executive director and substantial shareholder John Kinghorn is recommended on charges of  breach of directors’ duties charges.

Bear in mind that White Energy was the public sharemarket company into which Duncan and Kinghorn tried to sell Cascade. Cascade owns the Mount Penny exploration licence. Kinghorn is a director of White and Cascade, and Duncan is a director of White and a former director of Cascade, but they but failed to inform the White board about the involvement of Eddie Obeid in the Cascade dealings.

This failure to disclose, indeed they tried to push the deal through to enrich themselves, potentially constitutes a breach of directors duties to the board of White Energy.

With the White Energy AGM to be held in late November, the ASA is promising to voice robust opposition when it comes to the directorships of Kinghorn and Duncan.

White Energy “is a former ASX200 company which has been a disaster for investors, even though the proposed $500 million acquisition of Cascade Coal in 2010-11 did not proceed”, said ASA chairman Ian Curry today.

“Shareholders have contributed $488 million to the company but its market capitalisation has plunged to just $45 million after peaking at $1.22 billion around the time the Cascade Coal acquisition was first proposed in late 2010.

White Energy has more than 6000 small investors.

“The independent directors and non-aligned shareholders need to work together to try and salvage something from the reputational and financial damage that has hurt the company,” Mr Curry said.

Elsewhere, as lawyers, John McGuigan and John Atkinson should face some kind of scrutiny from professional bodies, although the likes of the NSW Legal Services Commission are not renowned for the potency or the pace of their disciplinary actions.

These two could also face some form of civil action, perhaps for breach of directors’ duties.

Even civil remedies are likely to be contested. Although it is hard to envisage how John Kinghorn and Travers Duncan can remain on the board of White – especially with Graham Cubbin there, the director who stood up to them, did the right thing and blocked the Cascade deal. There was the odd hero in the ICAC saga, as well as the villains.


Michael West

Michael West

Michael West established to focus on journalism of high public interest, particularly the rising power of corporations over democracy. Formerly a journalist and editor at Fairfax newspapers and a columnist at News Corp, West was appointed Adjunct Associate Professor at the University of Sydney’s School of Social and Political Sciences. You can follow Michael on Twitter @MichaelWestBiz.

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