It was a sunny Saturday morning in May 2006. We were in a playground at the beach, pushing our infant on a swing when the phone rang. It was Bill Shorten.
”Maate! Why didn’t you use those quotes I gave you?” Bill was referring to a story that day on page one of The Australian – where the reporter worked at the time – about Tasmania’s Beaconsfield mine disaster. The goldmine had collapsed on Anzac Day, April 26, trapping Todd Russell and Brant Webb almost one kilometre beneath the surface. Tragically, the rock fall killed fellow miner Larry Knight.
As the drama over the mine rescue made headlines around the world, Bill, then a union leader, had made haste to the mine site. Facing the cameras daily to report on the rescue operation, he soon shot to national prominence.
By the time he called a couple of weeks later, miffed at the absence of his quotes (they were chopped from the bottom of the story in the edit), we had begun to be a little miffed with Bill himself. He had a report by a geotechnical expert about seismic events at the mine with which he and his offsider Paul Howes refused to part. They were loath to breach confidentiality, Bill said.
We managed to get a copy elsewhere, much later. Written five months before the mine collapsed by respected geo Glen Sharrock from AMC, it recommended bolstering the ground-support mechanisms in the mine.
There had been a ”strong concentration of large seismic events”, Sharrock said. ”Based on AMC’s understanding of seismicity at Beaconsfield, the potential exists for further large and damaging seismic events. The mine ground control management plan should address the depth of failure issue and install cable bolts with appropriate surface support where required.”
In short, cable bolts were not installed. The mine collapsed six months later at level 925, where Sharrock had advocated the cable bolting. Later, at the inquest for the death of Knight, the coroner made no finding of negligence.
There was corporate intrigue over the mine two years before the human drama and it continues to this day. When it collapsed, the mine was in administration under the management of Perth accountant Michael Ryan. Ryan, then of Taylor Woodings, now presides over the controversial Kagara insolvency for FTI Consulting.
In 2005, we had published the story of how the goldmine had suddenly gone under, $77 million of debts were sold to Macquarie Bank for $300,000, then it became profitable again. That story would become the subject of a defamation suit, which The Australian won.
The conduct of the administration of the company that controlled the mine has been the subject of legal contests and freedom of information requests ever since.
Fast forward to Tuesday this week: Will Matthews, a small shareholder in that company, Allstate, appeared before the Supreme Court of Victoria to oppose an application by a coven of lawyers and accountants that his shares should be cancelled for nil consideration. Matthews has doggedly pursued his interest in Allstate since it went into administration in 2003 – so doggedly in fact that this year marks the 10th anniversary of his FOI request. Still afoot, it is perhaps an FOI world record. Since he activated his request, the population of the earth has expanded by 700 million.
Matthews has asked uncomfortable questions about the company – and put these to assorted directors, lawyers, regulators and accountants – questions such as: ”Where are the financial statements and why has the annual general meeting not been held?” In pursuit of that arcane substance, the truth, the pony-tailed surfer and actuary from Brighton has duked it out with Clayton Utz, Mallesons, Taylor Woodings, Macquarie Bank, the Australian Securities and Investments Commission, and the world’s largest goldminer, Newmont (which formerly controlled the mine). The only courts he has not been in have been the High Court and the tennis court.
Besides a two-hour stint on his feet before the Supreme Court of Victoria this week – browbeating Deloitte and Maddocks (Allstate’s latest administrators and their lawyers) for attempting to cancel his shares in dubious circumstances – he is spearheading two actions in the Federal Court. These relate to the controversial conduct of the administration in 2003. The defendants are Allstate and its former administrators Michael Ryan and Tony Woodings.
The lawsuits, on behalf of minorities, are funded out of Singapore and promise, should they proceed, to open up some old wounds and make a few new ones.
Matthews reckons the mine should never have gone under.
Meanwhile, in his quest to make public information public, he is before the Administrative Appeals Tribunal again in a couple of weeks.
Ironically, earlier this month ASIC shot off a letter to Deloitte withdrawing the relief it had given for Allstate’s 2013 accounts and reserving its rights to take action against Deloitte in relation to ”the apparent misrepresentation made to ASIC” and for breaches of the Corporations Act.
ASIC had a sudden change of heart and did not contest the share cancellation in court this week.
So Deloitte won and Matthews will finally lose his shares.
The cost of all this obfuscation must surely run into the millions. Still it proceeds apace.
Insolvency firms that run mines or other businesses seem to struggle with information flows. The Coroners’ report into the death of Larry Knight highlighted a series of information problems associated with the mine disaster. They included wrong information given to the family of Larry Knight, lack of communication between workers and mine management, lack of details about various rock falls given to Work Safe Tasmania and the apparent failure of mine management to share information between its geological consultants.
That was under the administration of Taylor Woodings.
Ten years after its first insolvency, three partners of Deloitte were appointed administrators of Allstate on October 1, 2013. Since then, the creditors and shareholders of the Company and the corporate regulator ASIC have been given that special treatment of dubious representations and omitted information which is the unadvertised speciality of big accounting and legal firms working in the insolvency field.
Deloitte together with their legal representatives, Maddocks, and the company’s directors have were accused by ASIC of appearing to misled shareholders, creditors and ASIC itself about the existence of the Allstate’s financial report for June 2013, in documents filed in court.
These stakeholders were led to belief that the financial report for June 2013 was in “draft” form and unfinished when in fact the financial report was final and signed off by chairman Clive Carroll and the auditors RSM Bird Cameron on August 29, 2013. What was said to be ‘draft’ was in fact final and being withheld from shareholders, creditors and ASIC. It’s all there in a letter to Deloitte from ASIC.
After its appointment, Deloitte sent a report to creditors and fronted a creditors meeting indicating there was no audited financial information for June 30, 2013 and only draft financial information was available.
In an application to ASIC dated November 25, 2013, Maddocks requested relief from preparing a financial report for June 30, 2013 and holding an annual meeting for 2013 on the basis that at the time of the application there were only “Draft Outstanding Reports” for 2013.
Deloitte confirmed to ASIC that in its opinion “the costs of finalising the preparation and lodging of the Draft Outstanding Reports” would impose “an unreasonable burden” on Allstate.
The appointment of the administrators had ‘disrupted” the routine for complying with reporting obligations, they claimed.
Maddocks made no mention of the fact that the financial report for 2013 had been completed and signed off but the company’s directors and Deloitte had chosen not to release it.
On Christmas Eve 2013, ASIC was persuaded to issue accounting and AGM relief based on the incorrect representations about a ‘draft financial report’ and the significant costs to complete what was already a financial report in final form.
Turning to May 2014 and the regulator got wind that Maddocks and Deloitte might have been pulling their leg in the relief application letter of November 25. ASIC was clearly not happy about the draft financial report storyline and they found their mojo.
In a letter to Maddocks and Deloitte dated May 16, 2014, ASIC served notice on Deloitte to produce the books and records of the company. The regulator had found out about the finalised and hitherto withheld financial report for June 30 last year.
In a letter to Maddocks and Deloitte of May 21, 2014, ASIC withdrews its “no action” relief for that missing financial report. The regulator also reserved its right to appear in the Supreme Court in Victoria to appear as a friend of the court – or amicus curiae – to protect the interests of minority shareholders like Will Matthews.
This was quite the irony as Matthews has been battling none other than ASIC in his epic FOI crusade. For a moment they were on the same side.
The Maddocks and Deloitte story line quickly changed once they received ASIC’s letter with the draft report. It was not the cost to complete a draft financial report that was the problem. It was the directors’ fault, they claimed. It was the directors fault that all these false representations had been made. The directors had instructed Deloitte not to lodge the final financial report for 2013 with ASIC or make it available to shareholders and creditors. They made us do it!
Maddocks also deployed their big legal firm schmooze with ASIC. An urgent meeting was arranged at ASIC’s offices on Monday.
On Tuesday, Will Matthews was in the Supreme Court trying to save his shares but his “amicus curiae” had become an “amicus in absentia”. ASIC did not appear.
All this lends allure to the Homeric FOI war prosecuted by Will Matthews in the name of getting a straight answer.